Last month I explored the question of whether or not divorcing couples actually need a Separation Agreement. For those that do, the next question that often arises is whether or not to draft it yourselves and save the expense of using lawyers.

While drafting your own agreement may seem appealing for its simplicity and cost savings, it comes with risks. Let’s look at some pros and cons of drafting your own Separation Agreement.

The Pros

1. Cost
   This is typically the main driver for creating your own Separation Agreement as it eliminates the need for expensive legal fees. Free templates are widely available online.
   
   
2. Control and Flexibility
   You and your Ex have full control over the terms of the agreement without external influence. This allows you to customize the document to suit your needs and preferences.
   
   
3. Speed
   If both parties are amicable and in agreement on key issues, creating your own agreement can save time compared to waiting for legal consultations.
   
   
4. Privacy
   By avoiding external parties, you maintain confidentiality regarding financial and personal matters.

The Cons

1. Legal Risks
   A self-drafted agreement may not comply with Ontario's legal standards under the Family Law Act, making it unenforceable in court. For example, agreements without independent legal advice may be invalidated.
   
   
2. Overlooking Important Details
   Without legal expertise, you risk missing critical elements such as tax implications, spousal support calculations, or future contingencies like relocation with children.
   
   
3. Imbalance in Negotiation
   If one party has more knowledge or bargaining power, the agreement may unfairly favour them. Courts may later deem such agreements invalid if they are found to be inequitable.
   
   
4. Long-term Costs
   Mistakes or ambiguous wording in a self-drafted agreement can lead to costly legal disputes in the future, outweighing the short-term savings.
   
   
5. Rushing the Process
   The emotional strain of separation can impair judgment, leading to rushed decisions that do not adequately protect long-term interests. For example, it may omit important details that get agreed on verbally, instead of getting documented, leaving you vulnerable to future disputes or misunderstandings.

When a separation is amicable with straightforward financial or parenting arrangements, writing your own Separation Agreement can seem like a viable option. However, the potential risks, such as legal invalidation or missed details, make it important to seek independent legal advice before finalizing the document. Balancing cost savings with legal advice ensures that your rights and obligations are adequately protected during this significant life transition.