On a regular basis I have clients come to me with a rough agreement in hand asking me to draft a Separation Agreement for them. These are the client’s who tell me they are “amicably” separating; they “just want out”, and/or they don’t want to spend a lot of money on legal fees. Quite often they have:
- done some research on the internet,
- sat down with their spouse, and
- they have worked out between themselves issues like where the children will live, how their family property and debts are to be split, and how much spousal and child support will be paid.
They come to me saying that they have “worked it all out” and they just want me to draft the Separation Agreement for them based on what they present to me and usually they want me to do it as quickly and inexpensively as possible.
When parties come to me in this fashion, they sometime baulk when I tell them I need more information and, when I ask them for back up documentation to support their “agreement”, they are often reluctant to gather the documentation. I ask questions and look to documentation because I have minimum professional standards that I must meet as a lawyer which require me to ensure that I can properly advise my client regarding their entitlements and risks. To meet professional standards (even if the parties are amicable) a lawyer I must:
- Obtain sufficient reliable information to be able to ascertain what the client would likely receive or be required to pay for spousal support, child support and matrimonial property division should the matter be resolved at trial and so advise my client;
- Give the client a description of options to any proposed settlement, an opinion on whether any proposed settlement is reasonable, and a discussion of the pros and cons of that settlement in comparison to the other options so that any decision to settle is an informed decision; and
- Tell a client who takes the position that he or she wants to settle without having received full information from the other side that they may be accepting less or paying more than what would be required according to law. To provide to that client an assessment of the impact of the risk including estimates of the value of what might be lost or paid above what was necessary to the extent possible on the basis of the information then available.
You are entitled to give up legal entitlements in order to achieve a settlement, but that will never excuse your counsel from the requirement that he or she ask the questions and get the information needed to properly advise you and to help you make informed choices. So if you are going to a lawyer with agreement in hand, be prepared for questions and bring along your paperwork.