The Big Question: Can A mediator Write A Separation Agreement?
The quick answer to this question is - Yes!
Mediators in Canada and many other countries and states can assist clients in writing their Separation Agreements.
What Is A Separation Agreement?
When spouses decide that their relationship is no longer working, they can write a Separation Agreement specifying the terms of the separation. This Agreement addresses essential topics like child support, a parenting plan, division of property, the matrimonial home and pension splitting.
As soon as you and your former partner live "separate and apart," you are legally separated in Ontario. "Separate and apart" does not necessarily mean living in different houses...
Because of the current economic conditions, many people live "separate and apart" but under the same roof. This means the parties have agreed they are separated but will remain in the home until it is reasonable to sell it, or one party can buy the other out. In the meantime, they must agree on managing the house's finances and continue caring for the children. It is best to include these temporary agreements in the original Separation Agreement. This is because a signed Separation Agreement is Legally Binding, and it will hold each party legally accountable for their behaviour and choices during the emotionally tenuous waiting time.
If you are looking for guidance on how to draft a comprehensive Separation Agreement, I suggest you take a look at my Sourcebook for Family Law Separation Agreement Clauses on Amazon. The book includes ten detailed examples of Separation Agreements, two Agreement amendments, and expert commentary on what to include in your Agreement.
Do I Need A Lawyer for A Separation Agreement?
Due to high litigation costs, more couples opt out of using lawyers for their separation or divorce. In Canada, you are not required to have a lawyer write or sign your Separation Agreement - you are free to write your own Agreement and have a witness sign it. Have you ever heard someone say, "We just wrote up our own agreement"? Exactly.
The trouble with writing Separation Agreements entirely on your own or using an online 'fill in the blanks' agreement generator is that neither of these approaches will give you informed guidance on what the legal system requires, especially if you plan on filing your Agreement with the court system for an official divorce order and certificate. This is where professional mediators shine.
You can get expert guidance from a family law mediator to help write your comprehensive Separation Agreement. This will assist you in moving through the divorce process without escalating tensions. It will also make the process quicker and far less expensive.
If you wish to consult with a lawyer or retain one for ongoing legal advice at any point in your divorce process, then you can do so. Some couples that go through mediation choose to use a lawyer for Independent Legal Advice (ILA) once the mediation process is complete but before they sign their Agreement. The bottom line is you can make your own choices on which method is best for you.
Does A Separation Agreement Need to Be Filed In Court?
While a Separation Agreement is a legally binding document as soon as both parties sign it with their witnesses (or a lawyer if you choose to use one), it does not necessarily need to be filed in court.
There are two main reasons why a Separation Agreement might be filed with the courts. The first one is to apply for a divorce decree if you are legally married. The other reason is that one party applies to court against the other and uses the terms of the Agreement to support the grievance.
All the clauses in your Agreement must be backed by precedent to be honoured in court. This means that a judge, somewhere in your country, has previously made an order using that clause. If you put clauses in your Agreement that are not precedent-backed, it is unlikely they will be upheld in court. This is why it is essential to have a fully informed professional help you write your Separation Agreement.
In Canada and many countries and states with similar judicial systems, divorcing couples can write Separation Agreements with a mediator, and they do not have to hire lawyers unless they choose to. It's essential that all the clauses in your Separation Agreement are precedent-backed and that you do not miss any critical clauses. That way, if you file for an official divorce decree or apply to court against your ex, the courts will recognize your Agreement as legitimate.
A well-trained and experienced Professional Mediator can educate you about Family Law and guide you through making all the appropriate choices for your Separation Agreement.
You can find more information about Family Law in Canada on the Justice Canada website here.
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