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Why Do I Need Independent Legal Advice?

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The law in Alberta requires each party in a separation agreement to obtain independent legal advice. What is independent legal advice, and why is it important?

What Is A Separation Agreement In Alberta?

Let’s start with the separation agreement. A legally-binding separation agreement in Alberta is a contract between spouses that details the conditions of your separation. It must:

– use concise and unambiguous language,
– include full financial disclosure,
– detail future dispute resolution and amendment processes, and
– be signed by two lawyers or include an Independent Legal Advice Certificate.

You and your spouse must have separate lawyers for independent legal advice. The same lawyer cannot represent both of you.

The benefits of a separation agreement include:

  • Avoiding disputes and misunderstanding, resulting in a more amicable process
  • Certainty for both parties about financial arrangements
  • Protecting the interests of your children
  • Saving money by avoiding litigation and qualifying for tax advantages

A separation agreement is not required in order to separate from or live apart from your spouse. However, Alberta courts will not grant a divorce until you and your spouse have decided on separation terms.

Entering into a separation agreement allows you to maintain control over decision-making about your separation instead of handing over authority to the court.

What Are My Rights Upon Separation?

You and your spouse have the right to decide on the conditions of your separation, including the division of property and parenting arrangements. If you can agree, everything can happen without the involvement of the courts. It is advisable to hire a lawyer to draw up a separation agreement to make your conditions legally binding and avoid conflict in the future.

If you and your spouse cannot agree, you can enlist the help of a lawyer, mediator, arbitrator, or judge. Arbitration and litigation relinquishes your right to decide the conditions of your separation, and places the decision-making in the hands of the arbitrator or the judge. Courtroom battles are stressful and typically not beneficial for either party nor their children.

Upon separation, you and your spouse have the right to live together in the home if you can’t afford separate homes. However, you must live completely separate lives, as roommates—no eating together or sleeping together. And there must be an intention for one of you to move out when it’s feasible.

The Family Law Act governs spousal support, child support, and parenting orders. Alberta courts decide on parenting arrangements based on the best interests of the children.

The Family Property Act classifies and divides family (or matrimonial) property and debts after separation and divorce. Alberta law requires you and your spouse to divide any debt that was incurred during your marriage.

If you leave the home, you have a right to take anything that belongs to you alone, including your clothing, personal items, gifts that were given to you alone, and anything that was exclusively yours before your marriage. You’re allowed to take a vehicle that’s registered in your name, and you may take a reasonable amount of money from any joint account to support yourself (and your children, if needed).

You may also take whatever is necessary for the care of the children (if you take them), including dishes, furniture, and clothing.

Why Do I Need A Lawyer For My Separation Agreement?

Alberta law protects individuals from agreeing to anything out of ignorance, misunderstanding, or coercion. This is accomplished by requiring you to get independent legal advice before signing a separation agreement. Your own lawyer has your best interests in mind, so they will explain your rights and obligations and ensure you understand before you sign the contract.

Without independent legal advice for both parties, a separation agreement is not legally binding. This makes it ineffective in court.

Your lawyer is obligated to:

  • Inform you about the likely spousal support, child support, and division of property that would be decided if brought to court
  • Describe your settlement options, including what’s reasonable and what the pros and cons of each option may be
  • Tell you if you’re agreeing to receive less or more than what’s required by law and how that may impact you

It’s also important that you have all the information you need to make an informed decision. This includes the information your spouse discloses about finances. Your lawyer can review the information you have and advise you if it appears there is valuable information missing. They can also tell you if you’re disclosing more information than is necessary.

Lawyers for Independent Legal Advice in Family Law in Alberta

Choose an experienced family law lawyer for independent legal advice during the separation process. The lawyers at Getz Collins and Associates will do our best to help you find practical and lasting solutions for your family. We provide honest and straightforward advice so you can make decisions with your eyes wide open. Contact us today.

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