I hear this question a lot: If I already have an agreement in principle with my ex, why should I go to the expense and bother of hiring a lawyer to prepare a formal separation agreement?
The simple answer is that hiring a lawyer is the best way to make sure that your ex cannot try to overturn the separation agreement later on. Sometimes, years after it’s been signed, people change their minds about a whether a financial settlement contained in a separation agreement was really in their best interests, particularly when circumstances change through job loss or disability. Of course, the whole idea behind a separation agreement is that it’s meant to resolve all issues between a couple, now and forever, so that both parties can move on with their lives. It’s not meant to be something that is reopened years down the line when one person has a change of heart.
When a couple both retain lawyers to draft and negotiate an agreement, they will receive independent legal advice. There will be a certificate attached to the agreement signed by both lawyers which confirms that each party received ILA. The presence of this certificate makes it difficult for one of the parties to argue that they didn’t understand the legal consequences of what they were signing, or that they were being unduly influenced or pressured into signing.
As part of the separation agreement, both parties will exchange sworn financial information that provides a detailed picture of their financial status since the date of marriage. It’s been known to happen that people will negotiate a financial settlement without the assistance of lawyers, and they neglect to include certain significant assets in the financial valuation and equalization- pensions, for example.
Not only do you need a lawyer when you can’t agree on the terms of a separation agreement, you also need a lawyer when you’ve already agreed on the terms and want to ensure that the agreement is valid and binding.