Do Separating Spouses Need Separation Agreements?


Separation agreements allow spouses to settle their disputes without going to court. The agreement outlines the responsibilities of each spouse and covers issues such as child custody, visitation arrangements, and the division of assets. Separation agreements are voluntary agreements. There are no laws that require spouses to have one in place before separation (a separation is legal once one spouse decides not to move back in with their former spouse). However, there are many reasons why both spouses benefit from having a legally binding agreement prior to separation.

Verbal agreements are risky for a myriad of reasons. It may be tempting to end the relationship as quickly as possible amidst a stressful separation, and to expedite the process a verbal agreement about the division of assets, child visitation rights, etc may be made. However, if a spouse changes their mind about the terms of the agreement, there is no legal protection. 

This is why former spouses should sign a separation agreement. Even if you appear to be in total harmony about the division of assets and responsibilities, they offer legal protection and provide peace of mind as the agreement is binding. 

Who Can Prepare a Separation Agreement?

Technically, spouses can prepare their own separation agreement so long as it is legally binding. Practically speaking, however, only the most simplistic cases should be handled without a lawyer. Separation agreements used to be quite simple, but in recent years they have become highly complex.

There has been plenty of development regarding spousal rights, for both men and women. Child support has also become difficult for spouses to work through without the help of a lawyer. These two developments have made it challenging for spouses to draft their own agreements. Even something that appears simple, such as determining a spouse’s income, can be difficult to assess without professional expertise.

The Importance of Using a Divorce Lawyer

If you do decide to create your own separation agreement, it’s highly recommended to hire a lawyer to draft the final document or, at the very least, review the agreement. This helps eliminate any wording that could cause lasting problems. And more importantly, the courts may decide that a separation agreement signed without receiving legal advice is not enforceable. 

One of the most valuable assets a lawyer can bring is their experience. Lawyers will be quick to point out any missed subjects and can fully address them before they become a problem down the line. 

Are Separation Agreement Binding and How are They Enforced?

For the separation agreement to be binding, it must be in writing and signed by both spouses in front of a witness (usually a lawyer). Furthermore, both parties must understand the contents of the agreement and the agreement must be signed voluntarily and not under duress. Once the document has been signed, both parties will have the same responsibilities as if it were court ordered. 

If either party fails to meet the requirements of the agreement, the other party can have the court enforce the terms. It’s important to note that only agreements that have been filed with the courts can be enforced. Filing an agreement can be done at any time, however for additional security and to ensure the enforceability should any unforeseen circumstances arise, we recommend doing so shortly after signing. 

Final Thoughts

Going through a separation is a stressful and emotional time. The process should be completed as quickly as possible, but completed properly to ensure potential legal issues do not arise down the road. The team at Cohen Buchan Edwards LLP has experienced family lawyers ready to guide clients through the separation process. Please book a free consultation to learn more.