The Problem with Homemade Separation Agreements

October 24, 2013
Ron Shulman

Article written by Ron Shulman

Separation and divorce is remarkably common these days, and there is a temptation to “do it yourself” when it comes to drafting a separation agreement.   Couples will often sit down and try to commit to paper the arrangements that they have agreed to, or will use a computerized kit or some sample agreements that they may have found on the Internet, usually in an attempt to save on legal fees.

We lawyers colloquially call these “kitchen table agreements”, since they are generally negotiated and signed by the separating couple over a cup of coffee in their kitchen.

The problem with these separation agreements – and indeed with all homemade documents purporting to settle legal rights – is that they often fail to cover all the issues, fail to correctly or fully describe the negotiated deal, or fail to accurately take into account those obligations and rights that arise by way of statute.

So what becomes of these ill-drafted, inaccurate, and often-unenforceable agreements?  Generally speaking, they are subject to being set aside by a court or else rectified to bring them in line with legal requirements and the parties’ own intentions.   The test for whether a court could or should do this is complex, but among the factors that it must consider is the extent to which the terms of the agreement deviate from the objectives of the governing law.

This was precisely the key factor in the a recent Ontario separation agreementcase called Cramer v. Cramer, 2013 ONSC 4182 where the parties had agreed to a separation agreement that completely overlooked the value of the husband’s pension, which by law was subject to certain rules which entitled the wife to share in its value.  The court essential re-wrote the parties putative agreement to bring it in line with the statutory requirements.

Couples usually try to draft their own separation agreements in order to save money on lawyers.  But when the matter ends up before a court, taking up not only money but time as well, it really begs the question whether any money was saved at all.

Thinking of drafting your own separation agreement?  Speak to us first.

Shulman Law Firm is a Toronto-area firm of experienced Family Lawyers who can provide practical advice and effective representation relating to the steps and processes involved in separating and getting divorced in Ontario.   Contact us to set up a consultation.