Although avoiding using a lawyer to help with a separation agreement may seem like a way to save money, many people find it costs them more in the end. Lawyers make sure that the separating spouses have a valid and enforceable separation agreement. If you do not follow the rules to make sure your separation agreement, then you may not have a separation agreement and all. Without an enforceable separation agreement, either spouse may be able to come back and make claims against a spouse who thought everything was settled. The spouse may have moved on with his or her life and made big financial decisions based on the terms of the separation agreement.
When a separated or divorced spouse unexpectedly falls on hard times, one of the first places they look is to their ex, especially when the separation agreement may not hold up.
That said, when it comes to claims for division of property after a marriage (it is very different for common law relationships) there are strict time limits in which a spouse can make a claim. If those time limits have expired, then those claims are “dead” and it is too late for either spouse to go after money that way. Section 7(3) of the Ontario Family Law Act says that a spouse cannot bring a claim for equalization of net family properties more than 2 years after the date of divorce or six years after separation, whichever is first. So, regardless of the validity of a separation agreement, neither of the former spouses can get an equalization payment if they have been divorced for more than two years or separated for more than six. It is important to remember that the date of separation may not be the date when one spouse moved out. It is the date when the spouses stopped acting like spouses of each other.
There is no time limit for a separated spouse to make a spousal support claim. However, the longer it has been since separation, the more difficult it may be to prove entitlement to non-compensatory spousal support. However, the inability to make a property claim may increase the amount of compensatory support. Ensuring you have an enforceable spousal support release is one very important reason to see a lawyer about your separation agreement. Spousal support claims can be worth hundreds of thousands of dollars over time.
If your ex is saying you do not need a lawyer for your separation agreement, that should be a red flag that you should book at least a consultation with a lawyer to find out why your spouse doesn’t want you to get legal advice. If your spouse says your separation agreement (or your marriage contract) is not valid, then you really need to speak to a lawyer if you want to see if there is a way to save that agreement. Contact Certified Specialist in Family Law (and author of the book below), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below. We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).
You can get a lot more information about Ontario Family Law issues, including support and property division and how to have an enforceable separation agreement by downloading this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac or ordering the paperback version. But, to keep out of trouble, it is always best to speak with a good family law lawyer.
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