How Do I Change a Family Law Agreement?
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The most common family law agreements are: cohabitation agreements, used when a couple plan on living together but don't plan on marrying; marriage agreements, used when a couple plan to marry; and, separation agreements, used when married spouses or unmarried spouses have separated. All of these agreements can be changed once they've been executed, as long as the parties to the agreement agree that the agreement should be changed.
What Can Be Changed
Normally, people only want to change one or two parts of an agreement while keeping the rest of the agreement intact. If you want a brand new agreement altogether, be careful. If the other party won't agree to throw out the old agreement, he or she will be entitled to go to court to enforce the old agreement, whether you're still happy with that agreement or not. This is, after all, why people execute contracts in the first place: they expect them to be permanent and they expect that the courts will hold people to the agreements they have made.
Making the New Agreement
Since, in most cases, the original agreement is being kept, changes to that agreement are made in new agreements called "amending agreements," "addendum agreements" or some other language to that effect. The new agreement is a separate contract which says in what ways the original contract is being changed. The new agreement will:
- state, in the recitals, the name and the date of the agreement which is being changed;
- briefly, also in the recitals, explain why the change is necessary; and,
- state, for each change, the paragraph affected in the old agreement and how that paragraph is to be changed.
You might handle the first and second points by saying something like this: "this agreement amends the Separation Agreement executed by the parties on 1 April 2010," and "following the execution of the Separation Agreement, the schedule of the parties' parenting time has become unworkable as a result of certain changes in their hours of employment."
The individual changes might be handled like this:
4. Paragraph 12 of the Separation Agreement will be cancelled and is replaced with the following:
"Sally will return the children to Harry's care at the 7:00pm or at the end of the evening shift, whichever is earlier. Sally will give Harry 24 hours notice in the event she is scheduled to work the evening shift on the days she is to return the children to Harry's care."
5. Paragraph 36 of the Separation Agreement will be replaced with the following:
"Sally will pay child support to Harry in the amount of $425 per month for so long as the children remain children of the marriage as defined by the Divorce Act."
The key points here are that: you must specifically identify the parts that are to be changed and how they are being changed; and, the new language must be as clear and unambiguous as the language of the original agreement.
Executing the New Agreement
The new agreement must be executed in front of witnesses in the same manner as the original agreement was executed. The witnesses to the new agreement do not need to be the same people who witnessed the original agreement.
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