A Standard Separation Agreement: Do You Really Require It?

If a couple intends to obtain a legal separation in Ontario, the most fundamental document associated with the process is the separation agreement. The fact is that a separation agreement is necessary to set forth the rights and obligations of both spouses.

Understanding a Separation Agreement 

With this essential factor understood, a couple interested in obtaining a legal separation needs to understand the elements that he or she really does need to have within the confines of that agreement. There are a number of items that simply must be addressed within this type of contract.

Division of Assets and Debts

In nearly all cases, couples that desire to separate have property and financial obligations that need to be divided between them. This includes property, from the marital residence to smaller items of that tend to adorn a couple’s home. Debts range from home mortgages to credit cards to balances due and owing on automobile loans.

Ideally, the parties are able to agree who is going to walk away with which items of property and who will be responsible for which debts.

A standard separation agreement delineates who is to take possession of specific large property items and who will be responsible for the more significant debts. Smaller items of personal property (kitchen items, for example) can be referenced generally within an agreement.

Child Custody, Visitation and Child Support

A major element that must be addressed in this type of agreement is the decision of the parties regarding minor children born during the marriage. There are three primary elements that are addressed in regard to children: custody, visitation and child support.

The parties need to decide how the physical custody of a child will be managed. For example, will one parent have primary physical custody with the other parent enjoying reasonable and regular visitation.

The parties must also determine how major life decisions affecting the child will be made. For example, will both parents have a say in making decisions regarding a child’s education, health care, treatment and religious practices.

Finally, the settlement agreement needs to establish the child support obligation the noncustodial parent will be obliged to pay. The amount due to be paid must conform generally with the requirements of applicable law and cannot deviate too significantly from those parameters without a significant rationale for doing so.

Marital Residence

As mentioned above, the parties must agree to and set forth in the document the manner in which assets and debts will be dealt with as a couple separates. One item of property deserves special attention: the marital residence.

Many couples make the decision to sell their home and divide the proceeds in some manner (if there are proceeds to be had). Some couples with children make the decision to forgo selling the marital residence for the time being. They make this decision to permit a bit more stability in the lives of their children. They determine that the parent with primary residential custody will reside in the home until the children reach a certain age (typically 18).

Another relatively common clause in this type of agreement permits one spouse to buy out the interest of the other in the marital residence. This can be accomplished with a cash payment or via the setting aside of a larger share of other assets in favor of the spouse not intending to remain in the home.

When you need the assistance of a Toronto divorce lawyer but don’t know where to turn, Fine & Associates is here for you. Our panel of family lawyers is sure to help you out, whatever your needs may be.