Protect yourself with a legal agreement or court order
Separation Agreement Alberta
A Separation Agreement is a contract that records a settlement of the issues that arise when a marriage OR common-law/Adult Interdependent Relationship comes to an end.
A Separation Agreement helps each party lay out their responsibilities and obligations based on their agreement when separating.
In order to create a Separation Agreement in Alberta, the terms being settled must be agreeable by both parties - and in the case where a matter cannot be resolved, we can assist the parties in coming to a mutual resolution through Mediation.
When is a Separation Agreement required?
In most cases, a legal Separation Agreement is requested by couples (when a breakdown in their relationship has occurred) in order to fully resolve all matters such as assets, liabilities, pensions, businesses, spousal support, child support, parenting, access/visitation and furthermore.
Separation Agreements can be an effective and affordable way of settling issues to ensure couples have fairly divided Family Property, and protected themselves from any possible future claims their spouse may have.
In order to ensure your agreement is considered legally binding within Alberta, the parties must obtain a Certificate of "Independent Legal Advice" on their agreement.
*A Separation Agreement may also be called: "Divorce and Property Agreement" or "Minutes of Settlement."
Protecting Pension
Pension is considered Family Property, and in order to fully protect your pension, or divide it, a legal Separation Agreement or Court Order will be required. To protect or divide pension in a Separation Agreement, the parties must have obtained Independent Legal Advice.
Spousal buy-outs/Mortgage refinance/Sale of property
When there is a Family Home, or any property held between the parties that requires a division such as a spousal buy-out with or without mortgage refinance, or a sale of a property, then a Separation Agreement will most likely be required by your financial institution and will be required at the time of sale to ensure the parties have complied with the terms and conditions within their agreement.
Assets
If any assets are accumulated during the relationship, such as a business, savings, vehicles, investments/RRSP's/stocks, collectable and/or valuable items, then it is important to have these matters protected by completing a Separation Agreement; waivers are outlined on each specific asset, and this ensures a party cannot come back and make a claim in the future.
Matrimonial Debt
While some parties mainly require a Separation Agreement to ensure their assets are protected, some may require an agreement to ensure who is responsible for the payment of certain debts held solely or jointly between the parties.
Spousal Support/Alimony
In the case where spousal support may be payable, it is important to first determine if a party is entitled to support, and if so, the amount and duration of support.
If spousal support is not being payable, then the parties can mutually waive the claim or reserve the claim for a later time in a Separation Agreement with Independent Legal Advice (ILA).
Independent Legal Advice (ILA)
What is Independent Legal Advice (ILA)?
In Alberta, to ensure your Separation Agreement is legally binding and enforceable, both parties are required to have Independent Legal Advice (ILA) when fully executing your agreement, which entails the following:
- Independent Legal Advice is given when your lawyer tells you what the law entitles you to, given the facts of your situation, and before you can get that advice, the lawyer needs a certain amount of information about your relationship, particularly about each party's financial position. The exchange of financial disclosure does not always involve pulling up bank account records, credit card records, etc... if each of you are confident in your knowledge of the other person's financial situation, then the financial disclosure could probably be completed if each side swore a statement laying out their approximate incomes, assets, and liabilities, and sent their sworn statement to the other side.
- If each party receives independent legal advice before signing, they know if they are getting more or getting less than what they legally could get and are making that decision knowingly; Therefore, it would be tough for them to have the agreement changed later on.
Lastly, most financial institutions will require ILA for a mortgage refinance/buyout, and if you and/or your spouse have an employment pension, then ILA or a consent property order may be necessary. A self-drafted agreement is not sufficient, nor accepted for these purposes.
Is my Sepration Agreement enforceable?
The Family Law Act grants the court the power to void a Separation Agreement or any clause in that contract if:
- a party, or neither party, provided a full financial disclosure without Independent Legal Advice (ILA);
- a party failed to disclose an asset, liability, or any financial subject to the other party at the time of completing the Separation Agreement;
- a party signed the agreement without knowing and understanding its contents;
- a party was not sound of mind while signing the agreement, or if a party signed the agreement while being forced, coerced or influenced;
- the Agreement was not prepared in accordance with the law of contract.
It is for these reasons that independent legal advice (ILA) is always recommended to ensure everyone understands their rights, responsibilities and obligations before they sign their Separation Agreement. A lawyer providing ILA will also review the financial disclosures, and explain if the contract is fair, valid and enforceable.
DivorceEZ can refer parties to economical third-party Independent Legal Advice when completing a Separation Agreement in Alberta.
