What Are the Main Warning Signs in a Separation Agreement?

Common Warning Signs

One of the clearest separation agreement warning signs is uncertainty about what each person is expected to do.

A separation agreement should give both spouses a workable understanding of their rights, responsibilities, payment obligations, parenting arrangements, and procedures for dealing with future issues.

Problems can arise when important clauses are too broad or leave key details unresolved.

Common warning signs include:

• vague or ambiguous wording;
• missing payment dates or deadlines;
• undefined responsibilities;
• contradictory clauses;
• important matters left to future agreement;
• no process for resolving disagreements; and
• terms based on assumptions rather than measurable standards.

Why Is Vague Wording a Problem in a Separation Agreement?

Vague wording may create separation agreement disputes because two reasonable people can read the same clause differently.

A stronger clause will often make practical details clear, including:

• who must take action;
• what they must do;
• when the obligation applies;
• how payment or notice must be provided; and
• what process applies if there is a disagreement.

For example, instead of simply stating that expenses will be shared “fairly,” an agreement may identify the types of expenses involved, the percentage each party pays, whether advance approval is required, and when reimbursement is due.

Are the Financial Terms Clear Enough?

Financial clauses are yet another source of separation agreement disputes.

A separation agreement might include issues related to child support, spousal support, costs of property, debts, insurance, taxes, refunds, and many more.

They should be clear enough so that both parties can comprehend how they operate.

Potential warning signs include:

• no deadline for making payments;
• no method for calculating shared expenses;
• no definition of which expenses qualify;
• no process for approving significant expenses;
• no procedure for exchanging receipts;
• no method for updating income information;
• unclear tax responsibilities; and
• incomplete financial disclosure.

A clause may say that parents will share certain child-related expenses but fail to explain how the costs are divided.

That can lead to repeated disagreements.

For example, one parent may register a child for an activity and expect reimbursement. The other parent may argue that the expense was never discussed or approved.

A more practical agreement may explain:

1. which expenses are included;
2. whether advance approval is required;
3. how the cost is divided;
4. how receipts are provided; and
5. when reimbursement must be made.

In addition, the agreement may have to cover costs in relation to section 7, in addition to usual child support payments.

Other financial considerations may include mortgage payments, property taxes, insurance payments, debt repayment, refinancing, or even the cost of maintaining the family home.

What Happens When an Agreement Does Not Explain Who Pays an Expense?

Unclear payment responsibilities can create recurring disputes.

For example:

“The parties will share extracurricular expenses fairly.”

This wording does not answer several practical questions.

Which activities qualify? Must both parents agree before registration? Is the cost divided equally or according to income? When must reimbursement be made?

A more detailed approach could identify:

• the categories of eligible expenses;
• whether written approval is required;
• each person’s percentage;
• the documentation required; and
• the payment deadline.

Financial clarity also depends on reliable financial disclosure.

Depending on the issues being negotiated, disclosure may include information about:

• income;
• assets;
• debts;
• property;
• pensions;
• investments;
• business interests;
• tax information; and
• significant liabilities.

Are Parenting Terms Too Vague to Work in Real Life?

For cases involving children, parenting terminology should be specific enough to use in day-to-day situations.

General agreements may seem flexible where there is cooperation among the spouses. However, such agreements may prove tough in case of any changes.

Possible warning signs include:

• no clear regular parenting schedule;
• unclear pickup and drop-off times;
• no holiday schedule;
• no rules for missed parenting time;
• no procedure for requesting schedule changes;
• unclear transportation responsibilities;
• no travel procedure;
• unclear communication expectations; and
• no process for handling major decisions.

For example:

“Parenting time will be flexible.”

That arrangement may work well for some families.

But there could arise some problems if one parent anticipates flexibility, while another parent wants a consistent routine.

Instead, one should agree on having a typical routine schedule and later describe how exceptions may occur in specific situations.

The same is true for all other issues, such as holidays, birthdays, school vacations, traveling, transportation, and other recurring matters.

Also, parenting clauses should be kept in focus for the child’s best interest.

In contrast to a commercial deal, a separation agreement should not regard parenting as an equal issue. The situation around children can change from time to time.

Should a Parenting Schedule Include Procedures for Changes and Cancellations?

Practical procedures may help parents manage unexpected changes without creating unnecessary conflict.

Depending on the family’s circumstances, the agreement may address:

• how much notice should normally be provided;
• whether change requests should be made in writing;
• who handles transportation;
• what happens when parenting time is missed;
• how emergencies are handled; and
• how temporary changes are confirmed.

For instance, it could stipulate that one must notify in an appropriate and timely manner when it comes to an alteration of a non-emergency nature. It makes the matter more defined and clear without implying that anything unusual cannot be foreseen. Parental arrangement will always be regulated by the laws of Ontario and what is in the best interest of the child.

Does the Agreement Explain What Happens When Circumstances Change?

A separation agreement may remain relevant for years.

During that time, income, employment, parenting schedules, housing, childcare needs, and other family circumstances can change.

A warning sign is an agreement that deals only with the family’s current situation and provides no clear process for handling important future changes.

Possible changes may include:

• an increase or decrease in income;
• job loss;
• relocation;
• changes in a child’s needs;
• new childcare costs;
• new school-related expenses;
• changes in parenting schedules;
• sale of a property;
• refinancing;
• retirement; and
• changes in insurance or health-related costs.

Not every separation agreement needs detailed provisions for every possible future event.

The appropriate terms depend on the family’s circumstances.

However, where future changes are reasonably foreseeable, the agreement may need a practical process for dealing with them.

Warning signs can include:

• no review date where one may be useful;
• no continuing disclosure obligation;
• no requirement to provide updated income information;
• no procedure for requesting changes;
• no notice requirement;
• no method for approving new shared expenses;
• no trigger for reviewing support or other financial obligations; and
• no process for resolving disagreements.

For example, an agreement may state:

“Support will be reviewed when necessary.”

This language could cause confusion if the contract does not include what might constitute grounds for a review.

Is losing one’s job sufficient? What about receiving a major pay raise? Retirement? Changes in parenting time?

In some cases, a more specific clause might list certain dates for review or events that could trigger a discussion of the terms.

The same problem applies to children’s expenses.

Where a child is young at the time the contract is signed, there will likely be changes in educational, extra-curricular, medical, and daycare expenses in the future.

It is not necessary to anticipate all future expenses in an agreement. It is possible, however, to establish a process for dealing with new expenses.

Should a Separation Agreement Include a Dispute-Resolution Process?

A clear dispute-resolution process may help both parties understand what to do when they disagree.

Without a process, even a relatively small issue may become harder to manage.

Depending on the agreement and the family’s circumstances, possible steps may include:

1. direct written discussion;
2. lawyer-assisted negotiation;
3. mediation;
4. another agreed dispute-resolution process; and
5. court proceedings where necessary.

For example, the agreement may require the parties to exchange relevant information and attempt to resolve the issue in writing before moving to mediation.

This does not mean every disagreement will be resolved without court involvement.

It also does not mean an agreement can permanently prevent a party from asking the court for a remedy where Ontario law allows it.

The purpose of a dispute-resolution clause is generally to provide a practical path for dealing with future disagreements.

A separation agreement lawyer can also review whether proposed procedures are realistic, clear, and appropriate for the issues involved.