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.

A Kinder and Gentler Marriage Contract by Philip Epstein

Have a look at this article by prominent Toronto family lawyer Philip Epstein:

http://canada.lawyers.com/lawyers/A~1038924~/A+KINDER+AND+GENTLER+MARRIAGE+CONTRACT.html

The article talks about how lawyers and clients should negotiate cohabitation and marriage contracts in order to avoid misunderstanding and upset during the process. In the same vain that collaborative practice advocates that clients and lawyers do all negotiation in the context of four-way meetings, Mr. Epstein suggests that marriage contracts should also be arrived at in the same manner. The traditional process is to have a client's lawyer simply draft up an agreement and then send it to the client's spouse and his/her lawyer for review. The difficulty here is that the spouse's lawyer's instinctive reaction is to make changes to the agreement. (How else do lawyers justify their existence??) As Mr. Epstein writes, it is "far better to meet and exchange ideas and exchange concerns. Then, at the end of that meeting, someone can undertake to circulate a draft that reflects the concerns raised at the meeting."

The first entry

Welcome to my blog. I am a collaborative family lawyer and family mediator practicing in the city of Toronto. Stay tuned for interesting articles and links dealing with my practice.