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Can our separation agreement be updated before the final divorce ?

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Anonymous Asked:

Separation agreement was signed by both parties but since information came about that each party have retirement benefits that are hugely different. Wife is retired and pension is based and was married to present spouse for 16 yrs. Husband is entitled to half of her pension should she die. Husband is younger, still employed. Is separation agreement binding or can this new info be brought out before final divorce decree. Info just came forward from teacher's pension board.

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A Family Lawyer
6 years ago

I assume that the agreement contemplated the parties equalizing their respective net family properties. To address this situation, you need to set aside the contract. Until the agreement is set aside, it is binding on the parties. The parties had not completed valuations of their respective properties, and yet proceeded to enter into and sign the agreement. The issue is whether the terms of the contract merit protection and being upheld. You should seek to fit your concerns relating to the agreement into one or more of the following factors: no legal advice, no financial disclosure, and otherwise common law grounds on which the contract should be set aside. The Family Law Act contemplates parties contracting out of the equalization regime of parties net family properties, and instead having the parties decide on issues of property division. One would need to first determine whether or not the intentions of the parties was to equalize their respective net family properties or enter into contractual arrangements as to a division of value of property based on other terms, there is a difference in these approaches.

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