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agreeing to a divorce without a lawyer

Agreeing to a Divorce without a Lawyer

If my spouse and I agree on everything, can’t we just draft our own agreement without getting a lawyer?

agreeing to a divorce without a lawyer

As family lawyers, we are frequently asked this question.  Many couples who separate make it a priority to keep things as amicable as possible, whether for the sake of their children or for their own well-being. Many couples also aim to avoid the expense associated with hiring lawyers. This, combined with the availability of online resources, means that, before even consulting a lawyer, many separating couples have already found online resources for determining child support, developing a parenting plan, and had discussions about how to divide their assets and debts. If everything is agreed upon, it begs the question as to why get lawyers involved at all?

The answer to this question is that many people choose to avail themselves of any number of self-help options for finalizing their agreement: drafting their own agreement, using a friend’s separation agreement as a template, or using websites that offer a “build your own separation agreement” service.  While the goal of trying to minimize conflict and cost in the wake of a separation is commendable and understandable, there are several reasons why drafting your own agreement is, or could become, problematic.

An agreement you drafted yourself (or obtained from the internet, or copied from a friend’s agreement) and that was signed without legal advice is very likely unenforceable

The Family Property Act governs the division of property for both married and unmarried couples in Alberta. It outlines very specific requirements for creating enforceable agreements. These include certain written acknowledgments made by both parties regarding:

  1. Their understanding of the agreement;
  2. Their awareness of possible future claims each may have under the Family Property Act; and
  3. That they are entering into the Agreement voluntarily and without any compulsion from the other party.

In addition, the Family Property Act requires that these acknowledgments be made before an independent lawyer (ie. both spouses must make their acknowledgments before different lawyers).

An agreement that does not comply with these specific requirements will not be enforceable. While other sections of the Family Property Act state that an agreement, even an unenforceable one, can be considered in the ultimate division of property, finding out whether your agreement will hold up after the fact is a big risk to take.

While the issues of parenting and support are governed by different legislation that does not contain such specific requirements on creating an enforceable agreement, case law in this area has made it clear that the law does allow for the setting aside of agreements in certain circumstances. The absence of legal advice or adequate financial disclosure may be fatal to having your agreement upheld.

Why does it matter if my agreement is enforceable?

You may wonder why you need an enforceable agreement, especially if you and your spouse are on good terms. If no one is planning on going to court anyway, why does it matter?

If you and your spouse have put the time and energy into agreeing on terms for your separation agreement, you probably did so with a few goals in mind:

  1. To get some certainty on what each of you will have to pay each other for both child and spousal support.
  2. To have some agreed-upon terms with respect to parenting in case of a future disagreement.
  3. To achieve certainty and finality in separating out your finances so you can plan financially for your post-separation future. 

These goals may be jeopardized if you do not have an enforceable agreement.

Imagine the financial upheaval if, a year after buying a home, the seller could come back to you, advise that they felt the sale price was unfair, and demand more money for the sale of the home?  While this is obviously not what occurs with a real estate contract, it is exactly what can happen if you have not taken steps to ensure the agreement reached with your spouse is enforceable.

One mistake people make in deciding to draft their own agreement is believing that the absence of conflict now means that will continue to be the case in the future. As we have seen very clearly from the past number of months with COVID-19,  life can be fairly unpredictable: jobs are lost, new jobs are obtained,  people can get sick and be unable to work and new partners can enter the picture. As these things happen, parties to an agreement may reflect on the settlement they made months or even years prior, and they may no longer feel the terms are fair.  With the exception of child support (which must be reviewed annually or on a change in circumstances in any event), an enforceable agreement should protect you from facing a demand to change the terms of your agreement because someone has had a change of heart on what is fair. An unenforceable agreement will not offer that protection.

If we hire a lawyer to draft our Agreement, how can we avoid getting into a big legal battle?

Getting a lawyer does not have to add conflict. If it does, that probably means you and your spouse were not as much on the same page as you thought you were. It also means that it was probably not going to take much to upend the agreement down the road anyway. The first thing your lawyer is going to do is discuss how you reached the terms of your agreement, what financial disclosure was exchanged and reviewed, and how you arrived at the valuation of assets and debts.

The next thing your lawyer is going to do is tell you how your agreement differs from your rights and obligations under the governing legislation.

As for adding expense, it is true that there is a cost to hiring a lawyer.  Subject to some unusual circumstances, however, your lawyer is there to take your instructions. While your lawyer may point out some variation between what you have agreed to under the terms of your agreement and what the law says you are entitled to (or obligated to do),  the ultimate settlement is largely up to you and your spouse. It may be that your agreement differs so greatly from what you are entitled to under the law, that you do wish to make changes. However, if that is the case, it only underscores the importance of legal advice in making that agreement. If you have reached an agreement with your spouse on the terms of your separation, please reach out to one of our lawyers who would be pleased to assist you in drafting a legally enforceable written agreement.