Separation Agreements

Separation Agreements

Our team understands that separating from your spouse or common-law partner is difficult. When going through a separation Kurie Moore Law Group’s family law team can help draft an agreement that is fair and is enforceable in Court.

Some common questions we see about Separation Agreements and Minutes of Settlement are:

  • Do I need a separation agreement?
  • Do I need Independent Legal Advice on my Separation Agreement?
  • Does a lawyer have to sign my Agreement with me?
  • How can I protect myself before getting married or moving in with my partner?
  • Can I draft my own Agreement?
  • Do I have to provide my ex with financial information?

Pre-nuptial & Cohabitation Agreements

Prenuptial Agreements and Cohabitation Agreements are usually signed prior to being married or entering into a common-law relationship. These Agreements are created to sort out property and other interests should you and your partner/spouse separate. Prenuptial Agreements/Cohabitation Agreements are typically considered for the following reasons:

  • To give you a level of certainty on how property is to be dealt with if the marriage/relationship ends;
  • To help protect your assets aquired prior to the relationship;
  • Protect your business assets or complex properties; and
  • Provide more certainty on potential spousal support payments.

Unlike Separation Agreements, Prenuptial/Cohabitation Agreements typically do not deal with issues relating to decision-making of children, parenting time, child support etc. These issues are usually dealt with after the separation.

Separation Agreement/Minutes of Settlement

Separation Agreements (or Minutes of Settlement) describes the agreed upon settlement pertaining to all the legal issues arising from their separation, these include:

  • Arrangements relating to children (i.e. decision-making, parenting time, etc.);
  • Spousal Support Claims;
  • Child Support Payments Owed;
  • Settlement of the spouses’ property claims;
  • Possession of the parties’ matrimonial home;
  • Vehicles and Personal Possessions; and
  • Division of Investments, Pensions and CPP Credits.

These Agreements typically include additional provisions whereby the parties agree that they will not advance further claims against each other in the future; with the exception of particular issues which are specifically referred to in the agreement as being subject to potential change or variation in the future.

Do I have to provide my ex-spouse with financial information in order to complete the Agreement?

After a separation, your ex is entitled review all of your financial information and you are entitled to see all of their information, this is a requirement in Alberta.

The financial information provided helps us determine how to fairly determine the following issues:

  • Spousal Support Claims;
  • Child Support Payments Owed;
  • Settlement of the spouses’ property claims;
  • Possession of the parties’ matrimonial home;
  • Vehicles and personal possessions; and
  • Investments, Pensions and CPP Credits.

Without this financial information, it is difficult to determine what you may be entitled to in terms of child support, spousal support and property division. In some cases Lawyers may not sign an Agreement with you if they have not reviewed the financial information beforehand. Which is included to protect you.

Can I do my Agreement on my own and can I sign without a lawyer?

You may choose to do your Agreement on your own. However, without knowing your rights regarding agreements and knowing what the Court requires for your agreement, your Agreement may be “challenged”. Furthermore, in signing your agreement with a lawyer who provides Independent Legal Advice on all Agreements is generally required in Alberta for Agreements that deal with property division.

The Court takes Independent Legal Advice very seriously. If you do not get legal advice prior to signing, your agreement in whole or in part may be considered unenforceable. The Court of Appeal has ruled that if Independent Legal Advice has not been properly given, it may not be satisfy the law.

Independent legal advice in family law is not simply notarizing a document. Our job as lawyers is to sit down with you, go through your agreement, and explain to you in depth the provisions of the settlement.

While providing the advice it is our job to inform you of what the law in Alberta states and ensure that you are not being forced or coerced into an agreement. We are here to explain what rights you may be forfeiting and what obligations you may be agreeing to in the agreement.

When giving Independent Legal Advice, we cannot act for both parties as this is a conflict. Your ex-spouse will have to book an appointment with a lawyer at a different firm to get his or her Independent Legal Advice.

Although, there is a cost associated with us providing Independent Legal Advice, should you decide not to incur the costs now you may face higher costs in the future if either of you dispute the agreement. While defending the validity of the agreement you could face a trial, which can be quite costly.

Some lawyers will not sign an Agreement you have drafted if it does not meet specific requirements

Changes to the Matrimonial Property Act.

On January 1, 2020, the Matrimonial Property Act was changed to the Family Property Act. This means that the rules for married and unmarried couples (Adult Interdependent Partnerships) will now be the same starting January 1, 2020 in regards to property division.

Kurie Moore Law Group’s family law team can draft appropriate parameters for your separation agreement, and help you resolve important issues like benefits and property issues.