When negotiating a separation agreement or participating in a family mediation, people often ask whether they each need to get their own lawyer. You are not required to hire your own lawyer; however, you may wish to get independent legal advice at some stage of the process.
The separation agreements we create in mediations and divorce negotiations will include two standard forms: one to certify receipt of independent legal advice was received and one to waive independent legal advice. This allows for someone signing that agreement to elect which one applies to them and to sign the appropriate document. It also ensures that anyone signing the agreement is aware that independent legal advice is an option available to them.
Separation agreements that have been signed by both parties and witnessed are binding legal documents. Binding separation agreements are intended to finally settle a variety of rights and obligations. They can be filed with the court and enforced in the same way that court orders can be enforced. They can be very difficult, and very expensive, to change.
Independent legal advice helps to inform parties of the full range of results and remedies available to them should they instead pursue an adversarial court process instead of a separation agreement. It informs parties of the rights and obligations contained in the agreement they are signing. Independent legal advice also ensures they are aware of the trade-offs they are making.
The most important part of independent legal advice is the first word – independent. This means that the advice is coming from a lawyer who isn’t duty-bound to another client or to be a neutral (as a mediator) and has no personal stake in the matter. That lawyer can advise one party independently of the other party, which can be particularly important where more for one means less for the other. This kind of information is different from the neutral, objective legal information and general range of possible court results and expenses that a lawyer-mediator like Sabrina Yeudall can provide in a family mediation.
Banks may require that a lawyer witness an agreement before they are prepared to rely on it for the purposes of determining your income or approving you for a mortgage. They do so to manage the risk that an agreement could be altered by a court if found to be significantly unfair.
Although saying “I didn’t know” isn’t enough to avoid a binding legal document, agreements supported by independent legal advice are more likely to stand up to future challenges. Lawyers are unlikely to witness your signature without also providing advice because of their professional obligations.
If you have an agreement you need independent legal advice on, give us a call and we can schedule a consultation to ensure you’re fully informed about the separation agreement you are being asked to sign. We can also help you negotiate changes to an agreement you’ve been presented with but do not entirely agree with – and do so in a manner that preserves the desire to reach agreement and not enter into an adversarial court process.
