By: Dayna E. Kwasney BA, JD
You and your spouse or partner have reached an agreement on parenting, child support, spousal support, and property division, and you are told by your spouse’s lawyer that you need to obtain “independent legal advice.” What does this mean? Why do you need it?
Independent legal advice (ILA) is essentially the advice given to you by your own lawyer apart from your spouse. The purpose of the advice is to ensure that you have an appreciation of the nature and consequence of the Agreement and what rights or entitlements you may be giving up by signing it. Your own lawyer will also assess whether you are signing the Agreement of your own free will and volition, or whether there is any significant pressure being imposed by your spouse or by others to sign it.
Obtaining ILA on any agreement dealing with the division of property is an absolute necessity under the Matrimonial Property Act of Alberta. Although not mandatory for Agreements only dealing with parenting and support issues, ILA does provide these types of Agreements with a greater level of integrity. If there is evidence that the parties were each advised by legal counsel prior to signing, the Agreement may be less susceptible to being overturned by the courts.
This is our process for providing ILA at Quantz Law. We will request and review a copy of the Agreement and the financial disclosure documentation, ideally prior to the initial meeting. This gives us time to prepare for the appointment, including preparation of any property division or child or spousal support calculations. We also send clients an initial intake questionnaire, which allows us to gather basic information about the parties, such as the history of the relationship, their financial circumstances, etc. to assist in our analysis of the terms of the Agreement.
Do not be alarmed if we ask a number of questions when reviewing the Agreement with you. This is not an attempt to open up the Agreement or radically change your settlement. Rather, we need the information in order to provide you with the best advice possible. As your lawyer, we will review your knowledge of the income, assets, and liabilities of your spouse or partner, and we will identify any deficiencies in the information that may need to be explored.
It is possible that we may be able to execute the Agreement with you during the initial appointment. However, more common than not, we may need to request further information or particular revisions to the Agreement before we can complete our independent legal advice and sign up the Agreement with you. The Agreement may be executed when both you and your lawyer are satisfied with its contents.
In instances where an Agreement deviates from a typical parenting or support arrangement or is quite different than the expected division of property under the applicable legislation, we might provide a letter outlining the differences and the risks of signing, so that you reconsider the terms of the settlement. You may then decide to return and sign the Agreement “as is” without further changes, or if you agree that some amendments are required, the lawyer providing ILA can then assist with that process.
In rare circumstances, a lawyer providing ILA may decline to sign the Agreement with you. This may occur if the Agreement is unconscionable or unfair, there has been no disclosure and your spouse or partner is refusing to provide the same, you are being unduly pressured into signing, or you lack the mental capacity to enter into a legal Agreement. These are situations in which an executed Agreement might be overturned by a court.
Once the Agreement has been executed and the conditions met, we will provide you with one or two original copies for your records. The original Agreement(s) should be kept in a safe place such as a safety deposit box or a fireproof safe. We will store an electronic copy of your Agreement for 10 years, but will not retain an original copy. This is why it is so important for you to retain the original in case any issues ever arise between you and your spouse or partner in the future.
A lawyer’s duty in providing ILA is not to simply “sign off” or act as a “witness” to the Settlement Agreement. It is so much more than that. It is a certification by your lawyer that we have advised you of the contents of the Agreement, and are satisfied that you understand the terms of the Agreement and the potential rights or entitlements you may be waived by entering into the Agreement. The lawyer’s job is to make sure you are fully aware of the terms and consequences of signing.
If you require ILA for a family law matter, please do not hesitate to contact our office at 780-482-7691 or firstname.lastname@example.org. We will provide you with further information regarding the process and set up an appointment for you with one of our family law lawyers.
NOTICE TO READER: The summaries of legal rights and remedies described above are general references to the Alberta laws existing at the date of the publication and may not apply to the reader’s individual circumstances. Also, the laws may change. These legal summaries are not to be relied upon as applicable to your individual circumstances and are subject to a complete review of the facts and applicable laws in every case.