The vast majority of family separations and divorces are settled out of court. Only about 1% of family cases in Canada actually get to trial. But building a solid family law settlement is somewhat analogous to building a sound house: you've got to start with a good foundation, and while you might be able to do a bit of wiring and plumbing yourself, foundations are best left to the professionals.
DIY agreements live in the moment
Many of the family law cases I assist clients with in court as a barrister started years before I got involved. Couples with good intentions, full of emotions surrounding a separation, worked out agreements that seemed reasonable at the time, and committed them to paper.
Usually those agreements took up only one or two pages for the couples to draft the key points that were important to them at the time. Sometimes they validated the agreements through obtaining consent court orders, and were reassured that because there was a court seal on their agreements, they must be legal and binding for all time. Sadly, they couldn’t be more wrong.
If there’s something to potentially fight over you need a lawyer
If separating couples have no children, truly no assets, and very modest incomes, they may not need a lawyer because there really isn’t anything to fight over. Everyone else needs legal advice, and a lawyer to draft their separation agreement. Trust me on this. I’m a lawyer. Would I lie to you?
After the separation agreement is done, you might be able to do your own divorce (though the additional the cost of doing a divorce at the same time as the separation agreement is negligible). But it’s the separation agreement that’s the foundation for the post-marital house the former spouses will both be stuck inhabiting for a long time to come.
And the top reason is ...
The top reason to never do your own separation or divorce is because your mutual no-lawyers agreement won’t resist future discord between you and your former spouse. It won’t be resilient. And it won’t stand up in court.
So long as you and your former spouse will get on well for decades to come, the DIY agreement may be just fine. But if you got on really well as a couple, you probably would not have split up to start with. Thus just as with marital relationships, post-marital relationships (including post-common law relationships) will have their ups and downs. I know I’m stating the obvious, and I’m not a psychologist, but my goal is to explain what I observe on a daily basis as part of my practice to be the adverse legal consequences of those ups and downs.
When you’ve got an up, both parties might honour a DIY agreement, though its lack of detail may cause tensions because children’s holidays, or expenses, or division of family property really weren’t sorted out in sufficient detail after all. When there’s a down, the entire agreement may be repudiated, with one of the ex-spouses now claiming retroactive child support, retroactive spousal support, and a redivision of the family property right back to the time of separation. And they might win.
Beware current online separation agreement tools
As Canada’s former Director of E-Business Development, I love technology. I believe it to be the future of legal practice, and the best hope for improving lawyer-client engagement and court efficiency. But current online technology is decades away from being a substitute for sound legal advice from a licensed lawyer.
There are now some amazing online family law tools available, most notably www.maysupportcalculator.ca/calculator which is great for figuring out likely amounts of child and spousal support; it’s a giveaway from the software creators of DivorceMate that all lawyers use. But online fill in the blanks separation agreements just won't cut it until artificial intelligence advances greatly.
If you wouldn’t dream of taking out your own appendix, then you shouldn't be trying to do your own separation agreement. DIY for either has huge risks of future complications, even if you survive the initial process.