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Issues With Mediated Separation Agreements

Issues With Mediated Separation Agreements

One of the biggest and sometimes toughest discussions when going through a separation is what is the best route to take to finalize things.  Many choose mediation; some because it seems like a less adversarial process, and others because it seems less costly than dealing with lowlife lawyers.

What is important in any process though, is that there is an exchange of full financial disclosure. This means looking at the value of assets and liabilities as of date of marriage and as of date of separation.  At that time, and with that information we can understand Net Family Property.

What is also crucial, is that both parties obtain independent legal advice (ILA) when signing the agreement.

What is Divorce Financial Disclosure?

Put simply, divorce financial disclosure is the part of a separation in which spouses exchange information about their finances. Each is required to complete what’s known as a Financial Statement. It’s an essential part of any separation as neither the parties, nor their legal counsel, can know what is being waived or agreed upon without all of the details of what is at stake.

In essence, it’s an opportunity for both parties to disclose any financial gain and requires the submission of supporting documentation that proves things like savings, investments, pensions and other assets that each spouse has.

In this stage of divorce, or mediation, you should be prepared to start digging through bank statements, credit card statement and property deeds. Financial disclosure also requires the declaration of the nature of any debts and liabilities you’ve had at three key stages:

  1. Day of marriage
  2. Day of separation
  3. Right now

Why Providing Full Financial Disclosure is Important

Providing full financial disclosure means you can make educated decisions. You are informed and therefore can feel empowered to make decisions that work best for you and your family.

Full financial disclosure means that your Agreement has a better chance of being upheld in court. Without this, your Agreement could be set aside.

Therefore, although you might not like to go through the process of obtaining financial disclosure to provide to the other side or evaluating financial disclosure received from the other side, it is an important part of the process and is necessary for any lawyer that does not want to be negligent. 

You should ensure that you are making an informed decision and will not regret your decision years down the road for not obtaining full disclosure. It brings peace of mind.

Independent Legal Advice

Any process that suggests a binding agreement at the end, without independent legal advice, is not providing accurate information.  Mediators mediate.  Plumbers plumb.  Lawyers deal with the law, which includes drafting contracts.

Courts are apt to set aside agreements where the parties were not fully aware of their rights and obligations.  This cannot be waived with an ILA Waiver.  Although the agreement may be given more credence over time, in the short term a Court will likely set aside an agreement for a lack of legal advice and/or a lack of disclosure.


For any questions regarding the enforceability of an agreement, or the drafting of a separation agreement, it’s best to talk with a lawyer to answer any specific questions to your situation.  It is better to have an agreement that brings true peace of mind, rather than one that isn’t worth the paper it is written on.

Feel free to call our office today to book a free 30-minute consultation.

This blog is made available by the law firm publisher, Epstein & Associates, for educational purposes. It provides general information and a general understanding of the law but does not provide specific legal advice. Any specific questions about your legal concerns please contact us now and speak to an expert today.