My ex wants me to sign a separation agreement in Nova Scotia. What information should I get before I sign it?
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If you’ve separated from your spouse or common law partner in Nova Scotia, a separation agreement is the easiest way to deal with all of the financial parts of separating, especially if you can agree on the terms. Your bank will also likely require a formal separation agreement, with independent legal advice before allowing you to remortgage your home.
‘Disclosure’ is the financial information you’re entitled to
Before signing a separation agreement, there are pieces of information you should share with each other, to make sure that you know what you are agreeing to. Lawyers call this information “disclosure” and it can be the most important part of coming to a fair agreement.
Review your ex’s historical income records
The most important disclosure is about income. At the very least, you should have a copy of your ex’s tax return for the last tax year, or a statement of income, like a T4, that shows how much money they made in the previous year, before taxes. Ideally, you would have the last three years of tax returns, and a copy of their most recent pay stub, if they have one, so that you know what their income is currently, and what it is usually like. You should provide the same information to your ex.
Review your ex’s pension information
The next most important disclosure is pension information. In Nova Scotia, most pensions also allow common law spouses to make claims to their ex’s pensions when separating. If you are being asked to agree not to make a claim to your ex’s pension, you should know how much you could be entitled to, before signing an agreement. If you have a pension, that same information should be given to your ex, as they have the same rights.
Matrimonial Property Act defaults to equal division of certain assets for legally married couples
There are other items that are also good to have, particularly if you are legally married, as section 4(1) of the Nova Scotia Matrimonial Property Act says that any assets owned by one spouse (or both spouses together) are “matrimonial assets”, which are presumed to be divided equally between the spouses if they separate. There are some exceptions, so it is always a good idea to get legal advice, as well as disclosure, especially if you or your spouse have any of the following:
Shares in a company, or ownership of a business;
Real property (land & houses) besides the one you live in as a married couple;
Investments (like TFSA, RRSP, mutual funds, bonds, etc);
CRA or other debts in one spouse’s name; and/or
Vehicles, machinery, etc., of significant value.
Legal Advice Strongly Encouraged
Any time you are asked to sign an agreement or contract, you want to make sure that you know what you are getting and what you are giving up when you sign it. In Nova Scotia, a separation agreement is a legal document, and can be registered with the court, which give it the status of a court order. Once signed, you can only change the terms if the other person agrees to do so or the court orders the changes.
Not understanding what you were entitled to is not generally a valid way to get out of a binding contract. That said, it is an argument that people make, so it is strongly advised to have both you and your ex obtain independent legal advice (and a document proving that you did so), so that if your ex wants to say they didn’t understand, you’ll have proof that they did get legal advice.
For a bit more information on what is involved in getting ‘Independent Legal Advice’, check out our blog: Why is my Nova Scotia bank requiring me to get “Independent Legal Advice”?
By: Anastacia DesLauriers – Lawyer
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