DIY Separation Agreements: Risk and Repair
Updated: May 29, 2022
The cost of legal work can seem daunting to many Canadians. They have heard stories about the divorce that cost many times more than what they expected or were quoted. Sometimes these outcomes are the not the explicit fault of someone, but they still hurt and cost nonetheless.
With the fear of excessive costs, and maybe an element of self-reliance, it is my experience that people are more likely today to try to draft their own Separation Agreement than they were in the past. Many companies sell 'kits' and guides on how to do it on your own. Similar to how a good carpenter doesn't buy their products from Ikea (regardless of how great Ikea might just be), I do not use these kits or guides nor know any other lawyer who would. I cannot speak to the quality of a specific kit or provider, but can provide my experience in dealing with these agreements.
I appreciate the work and effort that a person puts into drafting their own agreement. There is soo much to learn, and soo much to decide, that it can be a herculean task to draft on your own. The difficulty is that this is likely the first time, and last time, that you will draft this form of agreement. One of the biggest issues that I see is the lack of clarity of what has been agreed to. As a lawyer, I work daily with the phrases that help clarify exactly what you want to agree to. In my review of these agreements, I will be left sometimes with glaring questions as to what the parties mean. In some of the worst cases, I will see that over the course of numerous drafts, sections have been included that contradict other sections of the agreement.
In the end, these mistakes can truly damage the ability of the Court to uphold the agreement. If the Court is questioning what a sentence may mean, they are less likely to order that you must comply with that statement.
The other major issue around DIY agreements, is the stress that can be caused by an incomplete understanding about what the law is and what is reasonable. These kits are a 'one size, fits all' type of solution. The drafters can't include the specific clauses that you and your spouse want, nor the complete explanation of what is meant by those clauses. I will meet parties that have had their negotiations nearly breakdown simply because one or both sides lacks clarity to what the law is and what the clause 'really' means.
Improper wording can cost you significantly, and improper drafting can result in the agreement being tossed by the Courts. The cost to have a Separation Agreement prepared by a lawyer is typically much less than the cost to have to go to court later to try to fix or enforce an improperly drafted agreement.
Meeting with a lawyer to ensure that your Separation Agreement is crafted correctly is critical. For more information on Separation Agreements and how I can help, click here.