Are you going through a separation?
Lawyer in Edmonton Alberta
What Makes A Separation Agreement Legal?
Are you seeking a separation lawyer in Edmonton Alberta? I want you to be clear about the 3 Pillars to create a Legal Separation Agreement, they are vital, so stay with me as I explain each one in turn:
The 1st Pillar: Full Financial Disclosure
Full financial disclosure is fundamental to informed consent. When the disclosure is in place, you will have established a vital pillar of your separation agreement. Full financial disclosure is a precondition to the all-important financial settlement decisions you make. Complete financial disclosure is the bedrock upon which your financial statements are built and will support the informed decisions that form your separation agreement. Only with full and accurate financial disclosure can there be informed consent by each of you.
The 2nd Pillar: Informed Consent
Creating a legally sound, durable and properly executed separation agreement is a key step on the path to achieving an amicable divorce. The separation agreement represents the enduring understanding between spouses regarding all issues.
For an agreement to be legally durable, it’s vital that all decisions are informed decisions formulated from a complete set of facts.
Informed consent can be achieved through mediation because it’s a process that gives both parties a voice in formulating options that address their interests and concerns. The objective is always to avoid going to court while negotiating your parenting plan, division of assets, support and other settlement issues. Informed consent helps to achieve this.
The 3rd Pillar: Independent Legal Advice
You may read or hear that the ‘law’ says you must obtain independent legal advice before executing your separation agreement. This requirement is often misunderstood. It is not as if you will be arrested for signing a separation agreement without independent legal advice. The problem is that we live in an age where people are often not held accountable for their actions.
Alberta family court judges may set aside (nullify) separation agreements when a spouse claims they did not fully understand the implications of what they were signing. This is why independent legal advice is so important to obtain.
In the future, should your ex-spouse could make a request to the courts that a particular section of the agreement, or indeed the entire separation agreement be overturned, a Certificate of Independent Legal Advice (ILA) is your assurance that your separation agreement will be upheld.
An ILA can only be obtained from a lawyer – not a notary, paralegal or commissioner of oath. Divorce the Smartway maintains an extensive referral roster of lawyers prepared to provide you with an ILA. Remember, it is in your mutual best interests to receive independent legal advice.
When you each receive your ILA, a separation agreement is presumed to be binding for both of you.
Get your separation agreement prepared by a professional
Ensure both spouses disclose all assets, debts and liabilities
Make sure both spouses understand the nature and consequences of the separation agreement
Meet with a lawyer to discuss all questions so that all rights, entitlements and obligations are understood
Get legal advice before signing anything
Alternatives To Court
Not every divorce or family law matter needs to be resolved in court. There are alternatives, and these may provide an effective way of resolving even complex or contested issues. Settlement meetings, mediation, and arbitration can help spouses, parents, ex-spouses, and other parties find resolutions to their family law matters without the intervention of the court. This can save a considerable amount of time and money and can significantly reduce stress as well. Alternatives to court also foster more amicable relationships between divorcing or separating couples.
At any point in the legal process, the parties and their lawyers may choose to sit down and discuss the issues. Such meetings usually take place at a lawyer’s office. In the meeting, the lawyers attempt to negotiate and settle the issues at hand. If all issues are resolved, the terms of the settlement will be incorporated into a Minutes of Settlement or Separation Agreement.
With mediation, a neutral third party (often a senior family law practitioner who is a lawyer, retired Judge, psychologist, or social worker) will work to guide the parties to an agreement. Mediation can only be used if both parties agree to utilize this alternative to court. The mediator will be chosen and paid for jointly by the parties.
Arbitration is another alternative to litigation. As with mediation, both parties must consent to arbitration and jointly retain the arbitrator. Arbitrations are conducted by senior family law counsel or retired family law Judges.
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