The Importance of Written Agreements

When clients separate, one of the questions which they consider is whether they should have lawyers involved in the separation process. The response I give clients is that it is not a requirement to have lawyers involved in the process, but that it is strongly advisable to have a legally binding written separation agreement (which requires lawyers to be a part of to make happen). Here's why: A written agreement sets out the terms of the settlement (ie. who will get what in terms of property division, child support, spousal support and parenting). Of equal importance, is that a written agreement provides "release provisions" which finalize and set in stone the terms of the separation. For example, once an agreement is signed, a spouse cannot (in general) reopen discussions related to the issues dealt with in the agreement. The risk of not having an agreement written down is that a spouse may come back months or years later and reopen separation negotiations claiming that they are not happy with the deal they got.

Lawyers help with the drafting of that legally binding written separation agreement. How do lawyers help to ensure that an agreement is "legally binding"? They give their clients legal advice about what they are signing (ie. how their agreement stacks up against what they could get under the legal model), they focus their clients on issues that they did not consider, and they sign the certificate of independent legal advice found at the end of the separation agreement. (The certificate states that the lawyer has provided full advice to his/her client and that the client understands the advice, that the client is signing the agreement voluntarily, and without duress.) If an agreement is signed without the benefit of independent legal advice, it can be overturned quite easily by a court.

So, what I am trying to say is that a legally binding written separation agreement is a must in my mind for clients to have piece of mind. And, in order to ensure that the agreement is legally binding, clients do need the assistance of lawyers. If clients want to economize on legal fees, they can settle the terms of separation themselves and simply have the lawyers draft the agreement. (But they need to be open to what the lawyers will say to them about the deal that they negotiated on their own, so it is useful to check in with your lawyers to remain well-informed.)

Hope that helps.