What is a marriage agreement? Why you might I need one? This is a question our family lawyers get asked very often.
Most people know that they should get a marriage agreement. Some people choose not to because they have a hard time speaking about it with their spouse. If you plan to have children and if you have any property or debts, it is very important that you get a marriage agreement. Spending a few thousand today might save you tens or even hundreds of thousands of dollars in the future.
What goes into a marriage agreement can be as simple or as complex as the client chooses. Most commonly it includes a list of assets and debts both spouses are bringing into the marriage.
Does It Ruin the Romance?
Most couples start thinking about getting a marriage agreement after one spouse proposes to the other and the proposal is accepted. The date of the wedding is set and the wedding is being planned. At the same time the spouses know that financial planning is as important legal preparation. The challenge, is that this is a very romantic time in the relationship and neither party wants to discuss the possibility of divorce. Unfortunately, the divorce rate is currently approaching 50%. Very few people that get married think they will be part of the 50% that gets divorced.
Spouses need to understand that planning is important even if they don’t believe that they will ever get divorced. The marriage agreement sets out what will happen to assets and debts if a divorce occurs. It is also a good idea to include terms regarding spousal support, child support and a child custody access plan. It is important to note that family judges do not have to accept the marriage agreement terms regarding child custody. Family judges almost always make decisions based on what is best for the children, not the parents.
Be Honest About Your Assets
The main advantage of the marriage agreement is that you get to decide with your spouse what will happen to your assets, money and children versus a third party deciding. If you do not have a marriage agreement and you go to court or arbitration, either the judge or the arbitrator will make the decision for you. It can upset people greatly, when it comes to decisions regarding their assets and children be in the hands of someone else.
Read more: Protecting Property In Common Law
While drafting the agreement, it is important to be honest about your assets and debts. If in the future, your spouse can prove that you lied or hid assets then the marriage agreement can be deemed void by a judge. This defeats the purpose of what you were trying to do when protecting your assets with the agreement.
It is also important for you to sign the agreement long before the wedding occurs. If you sign a few days before the wedding, a spouse can later claim they only signed the agreement because they were under pressure due to the wedding date. If you are unable to sign a marriage agreement before the wedding you can always do a postnuptial agreement. There is no legal difference between a pre or post marriage agreement.
Independent Legal Advice for Marriage Agreement
It is also important for both parties to get independent legal advice from separate family lawyers. Often one of the spouses will hire a family lawyer to create the separation agreement. The lawyer will then send the agreement to the other spouse for review. That spouse should then take the agreement to another family lawyer to receive independent legal advice. This is important so that both parties understand the agreement. Also, both spouses will have a chance to speak to a lawyer about their own personal concerns. I.L.A makes the marriage agreement much stronger as neither party can claim that the family lawyer who drafted the agreement was representing both spouse’s interests at the same time.
The marriage agreement must be fair and take both parties’ interests into consideration. If you decide to include information about children, then the agreement must be in the best interest of the children. This is a crucial step so that a judge will uphold the terms of the marriage agreement if case of further separation.
What Is A Prenuptial Agreement?
A question our law firm often gets asked is, “what is the difference between a marriage, postnuptial and separation agreement?”. A marriage agreement happens before you get married and there’s no expectation of divorce. On the other hand, a postnuptial agreement happens if you are already married and want to do something like an insurance policy, and you are not actually going through separation or divorce. A separation agreement happens during a breakup or divorce. It ends the relationship.
Prenuptial agreement is the American term. In Canada, we call it a marriage agreement.
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