Understanding Separation Agreements - Zukerman Law

Understanding Separation Agreements

The dissolution of any relationship is a trying time for both parties. No matter the status or nature of a couple (married or common-law), the breakdown of a relationship signals a change in day-to-day activities, interdependence and lifestyle. It is never ideal to leave behind a home, belongings or financial security but when the times does come, it is important to ensure that any division is carried out fairly.

When exiting a marriage, spouses have several options for next steps:

  • to walk away with nothing
  • to settle in court in front of a judge
  • to negotiate an agreement that works for both parties

At its simplest, a separation agreement is a contract, created and signed by both spouses, detailing parenting details, division of property, division or responsibility for debts, the payment of child and or spousal support. These settlements require negotiation, combining the wants, needs and opinions of both parties weighed against their respective legal entitlements and obligations to each other so as to create a comprehensive agreement. These contracts can help to reduce stress and encourage cooperation throughout separations and can even be used during a court proceeding to settle the case.

In order to cut costs and save time, a separation agreement should be written out in a clear, thorough and reasonable way.  Any contract that is found to be unrealistic, significantly unfair, or unclear in its meaning, can be attacked, set aside, or varied in court. In order to build reasonable guidelines or standards, it is important to know what should be included in your contract.

Parenting/Guardianship/Contact: Time spent and parenting are divided into sole or joint options. Joint guardianship ensures that both parents have a say in how the child or children are raised. Joint guardianship does not reflect how much time is spent with either parent. Parental responsibilities include the everyday activities and schedules, including extracurriculars and decisions about education. These schedules should be organized in conjunction with parenting schedules, which reflect which days and nights are spent with each parent.

Child Support: These costs refer to a monthly sum paid between parents to cover the costs involved in raising the child(ren).  There can be an amount set for monthly support which contributes to basic housing, clothing, food costs etc, as well as Special Expenses which are a contribution to particular expenses incurred to meet the children’s particular needs (such as daycare, braces, glasses, special activities etc. The basic monthly sum is based off of income and who has physical care of the child for more time. Special expenses are shared in proportion to the parties respective incomes. In this regard, separation agreements should present truthful financial information, such as: the income of both parties; the amount of support to be paid; what expenses are or are not included as Special Expenses, accounting for a shift in payment amounts in the case of rise of fall in personal income for either party.

Spousal Support: This payment is made from one spouse to another in order to cover day-to-day expenses such as bills for housing, food, clothing, transportation etc., usually for a fixed period of time – typically from half the duration of the entire relationship up to the full length of the relationship or longer in certain circumstances. Periodic (monthly) spousal support is deductible from the taxable income of the payor, and is taxable income to the recipient.  Spousal support is not guaranteed to be included in every agreement and may not be relevant to your particular case. The parameters for payments may include causes for termination of support based on new relationships or marriages, limited time periods or even re-evaluations over time.

Division of Property & Debts: There are a lot of notions about what counts as fair division of assets or debts, some of which might appeal to both parties or it might be a huge area for disagreement. It is presumed that each spouse will keep the original equity which existed in the respective assets and property that they brought into the relationship and that each partner will be entitled to half of the growth in equity that arose during the relationship.  Generally speaking each party is half responsible for the debt accumulated during the marriage. The truth is that the options for agreement are endless and can be divided up in any way that partners see fit.

On their own, separation agreements can be incredibly useful tools, but it is always beneficial to consult with an experienced lawyer to ensure that these contracts are as thorough and fair as they can be. Whether you are ending a marriage or seeking to dissolve a common-law relationship, there is always a way to achieve a fair agreement.


Stuart Zukerman

Stuart Zukerman, a graduate of the University of British Columbia, has over 32 years of experience in litigation with a focus on Family Law, Personal Injury, Wrongful Dismissal claims, and Collaborative Divorce & Mediation. He has extensive trial experience in divorce, child custody, spousal support, asset division, and ICBC injury claims. As an accredited Family Law Mediator, he helps resolve disputes without court intervention. Stuart has also authored papers on family law and lectured at CLE courses.