Why your separation agreement might not be final - MoneySense

This is why your separation agreement could be challenged

Wiggle-room means your ex-spouse may try to get more of your money


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Q: A private separation agreement has been signed and witnessed. Can the finances that have been divided be changed if someone wants more money afterward? Or is the private separation agreement final?

—Ken B.

A: I am not sure what you mean by a “private” separation agreement. I would never recommend writing up your own separation agreement. Even if it signed by both parties and witnessed, it is not considered a valid document in the eye of the courts, and therefore it can be overturned.

A properly executed separation agreement has several factors. First, let me say, even though you are more than able to come up with your own agreement, I would always recommend the advice of a Certified Divorce Financial Analyst if there are financial assets to be divided. This would ensure complete transparency and understanding by both parties of all the financial issues.

After you and your ex have satisfied yourself that you are happy with the agreement, in order to have a fully executed document that would hold up against scrutiny in court, you must each seek independent legal advice.  In this process, you would be asked for full financial disclosure and have to sign a legal document swearing to validity. Without this step, your agreement can be challenged at any time and a judge would then be able to change the terms of your agreement if one party felt the settlement to be unfair.

Many people are hesitant to seek the advice of professionals because they do not want to pay their fee. But it is much less costly to seek the advice you require in advance and work through things in a fair and equitable way than have to defend yourself later, when you may not be in the position to come up with what the other side is entitled to.

So the long and the short of the story is this: a self-executed document is not considered a valid separation agreement as one party can always claim they didn’t understand the terms, and weren’t given the opportunity to seek legal or financial advice.  Pennywise and pound foolish can end up being very costly indeed in the long run.

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—Debbie Hartzman, is a certified divorce financial analyst with Professional Investments in Kingston, Ont.