Being Informed prior to Signing: 'Kicking the Tires'

Oct 03, 2014

By Charles Morrison, Lawyer

Several times a month, I pose this question to first-time family law clients:

“If you were buying a car, would you drive the car off the lot, stop and pause? Would you then ask?...

‘What did I buy?’

‘What did I pay?’

‘Did I sign anything?’

‘How do I know if the car is any good?’

‘What mileage does it get’?

‘What am I on the hook for?’

The answer to all of these questions is (I hope) “Of course not.” As a careful consumer, you would have ‘kicked the tires’ beforehand. You would have read about the car and other models including reviews, checked the specs, asked the salesperson questions, compared models, compared prices between dealers and gone on test drives. You would have ultimately decided either to buy the car or continue your search. Maybe you would have checked with a mechanic. Once you decided which car to buy, you would have chosen the dealer. You would have together discussed (or maybe haggled over) price, trade-in and other terms. You would have received the contract, read it over and signed if it was acceptable. Only then would you come up with the cash or credit. At last, you would get the shiny new keys and drive the car off the lot.

The process of negotiating a fair and equitable settlement following a separation is no different. It is amazing, however, how some people jump directly to making a quick deal and signing the “paperwork”. They may be trying to avoid lawyers or looking for a quick fix to their issues. Sometimes they write up from scratch a document which sounds impressively legal but is likely to get them into worse problems. Others may use a “fill in the blanks” kind of separation agreement that they obtained off the internet or in a kit.

The document may be vague, confusing or even contradictory in language. It may be incomplete or unfair. That may later lead to challenges to the validity of what was signed.

I may be a bit biased given that I am a family lawyer however I believe that there is a difference from making a settlement from an informed point of view and one that may, at the moment, feel good but without the information that they should have beforehand. Without legal advice, people do not always know how the law treats issues such as custody, access, support and property division. They do not know about the formulas that our laws provide for some of these issues. Most importantly, they do not always have full and accurate financial information from their spouses to enable them to make informed decisions. They do not often realize that the solution to family issues can involve several options and can be highly customized to meet the needs of their particular family.

One of the two biggest misconceptions that I encounter when meeting new clients, is that each gets “half” the property of the other.  Ontario law does not do this but uses a formula which, in simplest terms, measures each party’s net worth (net family property) and compensates with a money payment for any inequality.  Too often, the “fill-in-the-blanks” generic internet agreements do not address this formula but merely set out what each party “keeps” as his or her assets and debts.  More importantly, to figure out whether there is a compensatory payment from one to the other and how much it should be for involves hard work in obtaining sufficient and accurate financial documentation before any thought is given to concluding a settlement or drawing up the agreement.

The same holds true when dealing with custody and access issues, child support, spousal support and a host of others. The legal document that you eventually sign should be the last step, not the first. And it should be the result of informed choices, made possible by becoming familiar with the law, financial information, consideration of the different options available, brainstorming, compromise and plain old haggling.

You don’t necessarily have to follow the advice of your lawyer or the legal formulas out there. But at least, you have settled with the knowledge that you needed. You have ‘kicked the tires’.

At Morrison Reist, we advise and represent separated, about-to-be-separated and divorced clients with professional care, concern and empathy.