The pitfalls of writing do-it-yourself separation agreement
Very often, when parties decide to separate, one or the other party considers writing up an agreement (separation agreement) to arrange their affairs. They often do this before talking to a lawyer or rather than talking to a lawyer.
Do-it-yourself is not impossible. But there are mistakes that people fall into when they try to deal with the separation issues by themselves. As I say, it is not impossible and even in cases where there are mistakes, as long as all parties are happy to correct mistakes later, these mistakes may be curable or may never even come up.
But the cases that lawyers see are the cases were mistakes lead to significant losses for one party or the other.
I will give you an example: I dealt with a case where the wife wrote up a document essentially giving significant assets to herself and less to the husband. The husband signed it at the kitchen table. These documents are often called ‘kitchen-table’ agreements for that reason. There were no witnesses and most importantly, no legal advice.
Later the husband contested the validity of the document. The court upheld the document. This is an exception to the general rule that these documents are not valid.
The result was a significant loss of assets to the husband because of his signature on a badly drafted agreement.
Another example is a case where parties exchanged emails rather than actually signing an agreement. In ordinary law this would be perfectly acceptable. It is not generally acceptable in family law.
The ultimate point is that, even if you as a party wish to write up a separation agreement without a lawyer or in advance of speaking to a lawyer (always a good idea), do not sign it or, preferably do not even show it to the other party before calling a lawyer.
I am happy to have a free discussion with anyone thinking about this.
