Are DIY separation agreements a good idea?

Divorces can be expensive. Lawyers, mediators, all cost hundreds of dollars an hour. But if you and your partner are thinking of going your separate ways, what could be an alternative? Some couples are turning to legal templates they find online or at the bookstore. But is that a good idea to do it yourself?

I spoke with Georgia Swan at TD Wealth. And I began by asking her why couples looking to split up would even consider trying to work together to do it themselves. And this is what she had to say.

The perceived cost, basically, of what it would mean to go to a lawyer, and each have their own lawyer, and have that lawyer basically deal with their divorce from start to finish.

OK. So it's good for costs. But is it a good idea legally?

No, it isn't. It is not a bad idea to at least sit down, if you can, with your soon-to-be ex-spouse and discuss what the future looks like for you. But it's never a good idea to end there. If you start at that process, you must always, or should always, go to a lawyer and at least have them look over whatever you've come to an agreement on.

So it'd be great, again, if you start there. You start having the conversation. You're thinking about the things you need to think about. For people who decide to do it themselves, what have been some of the problems you've seen that have come out the other end?

Well, basically that agreements require certain things in order to be legally binding, especially in family law. One of the first things that they require is that both people had independent legal advice. You have to know what you're agreeing to, or not agreeing to, or giving up. And in the case where people are doing them all themselves, they haven't had that fundamental independent legal advice.

Then there's the notion of whether they have been completely transparent with each other about their finances. That's another basic requirement of family law, as well, that there's complete transparency with respect to finances. So a good idea is to maybe start there. But then have the lawyer look at the agreement and show if indeed you have thought of everything.

I know I've heard of some situations where people do it themselves. And maybe they're actually not technically divorced. Then they get into another relationship. And then suddenly, you have two spouses.

That is absolutely correct. I had a few former clients that that happened to. The whole point is, once you do the separation agreement, you're supposed to eventually go and get the divorce. And if you don't, and then you start cohabiting with somebody, or living together, basically, that means that you actually have two spouses. And that can cause significant problems, especially if one of the people passes away.

I was just going to say, what's worse than one divorce? Two at the same time.

Exactly.

What's a better way to do this, then? So let's say that a couple gets together. They research online.

They start the process themselves. What is the process? What should they do?

Well, once they have some idea about what it looks like, I used to say to some of my former clients that the best thing to do is start first with going to a lawyer and just having them do an initial consultation where they tell you what your rights are, what your obligations are. Then, if you want to go back to the kitchen table with your spouse, and sit down, and sort of plan a few things out, that's fine. And then go back to the lawyer and have the lawyer actually draft the agreement.

That's actually a new trend in law. It's an unbundling of services, where you choose specific tasks that you want a lawyer to do rather than have them just, all right, I need a divorce. Where do I start? Take it from there.

The other option people now have, which I think is really a good one, is mediation. So basically, that's where both of you choose someone to mediate your dispute. And that person sits down, with no bias to one person's rights over the other, and helps you negotiate, basically, what it is that you want. The mediator then will often prepare a mediation report that then you can each take to your respective lawyers, again, to reduce down to an agreement that actually is binding.

I'm assuming, though, there has to be some level of getting along for mediation to take place?

Absolutely. Both people have to be invested in that process working. And unfortunately, these are all, I want to say, the best case scenario for people that can make it work. Unfortunately, in lots of cases where maybe there's a lot of conflict or maybe we have a safety issue, you may have no choice but to immediately retain a lawyer and to proceed with the matter that way.

Let me ask you. So if you decide that, I mean, mediation, great if you can do that. To your point, best case scenario. But if you can't, and you are going to be dealing with a lawyer ongoing, how do you keep the costs down?

First and foremost, your lawyer's not your therapist.

But they're nice people.

I know they are. And, you know, any lawyer that does family law, they are sympathetic people by nature, absolutely. But the thing is they're not therapists. They're there to guide you through the legal process and make sure your rights are protected. So if you need someone to help you deal with the emotional issues, go to a professional that is basically trained in doing that.

And keep the lawyering for the lawyers.

Exactly.

What about just how you deal with paperwork and information? Is there ways to keep the cost down there?

Absolutely. The more that you can do yourself, the better. As I said before, one of the main issues with respect to family law is transparency and finances. So the lawyer's going to ask for a lot of information about your bills and how much you spend on things. The more you can put that together yourself rather than walking into the lawyer's office with a shopping bag of receipts, the more your costs will stay down.

I know one that I've heard about is make it easier for your lawyer by staying off social media.

Absolutely. Don't make the matter worse, OK? Basically, stay off of social media, and think very carefully. When you're sitting down writing that email to your soon-to-be ex-spouse or about to send them a tweet, think of what it's going to look like if that email is read out in open court.

Last tip you have here, which I think is so profound, is plan your marriage, not your wedding.

Absolutely. That's one of the tips that once a colleague of mine gave me, that I think in our society, we need to start thinking more about the fact that when people get married that is, for lack of a better word, the most important union that you can ever have because you are connecting your life to that person, not just your finances.

And conceivably, you're creating a situation where you're going to be connected to that person for the rest of your life through a child. So I think we do need to think more about planning the marriage and what that looks like and a little less about what the wedding flowers are going to be.

Georgia, great to talk to you.

Thank you.