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Difference between revisions of "Family Law Agreements"
From Clicklaw Wikibooks
→The Elements of a Family Law Agreement
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==The Elements of a Family Law Agreement== | ==The Elements of a Family Law Agreement== | ||
The point of a family law agreement is | The point of a family law agreement is to make a legal contract that both parties intend to be bound by and that the court can and will enforce if a party doesn't live up to his or her obligations. In order to be legally binding and enforceable, agreements must be negotiated, drafted and signed in a certain way and include certain terms. | ||
===Negotiating the Terms of an Agreement=== | ===Negotiating the Terms of an Agreement=== | ||
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*The parties can't be under any sort of legal disability such as insanity. | *The parties can't be under any sort of legal disability such as insanity. | ||
*The parties must both sign the agreement of their own free will, without any pressure by the other party. | *The parties must both sign the agreement of their own free will, without any pressure by the other party. | ||
*The agreement must be properly executed, preferably in the presence of | *The agreement must be properly executed, preferably signed by the parties in the presence of at least one witness. | ||
As a general rule, each party who enters into a family law agreement should get ''independent legal advice'', advice from their own lawyer, about: | As a general rule, each party who enters into a family law agreement should get ''independent legal advice'', advice from their own lawyer, about: | ||
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====The Introduction==== | ====The Introduction==== | ||
The introduction to an agreement, also known as the ''exordium'', is the portion of an agreement that identifies the parties to the agreement, provides a title for the agreement, and sets out the date on which the agreement is made. This section typically looks like this: | The introduction to an agreement, also known as the ''exordium'' (isn't that a great word?), is the portion of an agreement that identifies the parties to the agreement, provides a title for the agreement, and sets out the date on which the agreement is made. This section typically looks like this: | ||
<blockquote><tt>THIS SEPARATION AGREEMENT is made on this the 1st day of March, 2013.</tt></blockquote> | <blockquote><tt>THIS SEPARATION AGREEMENT is made on this the 1st day of March, 2013.</tt></blockquote> | ||
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====The Recitals==== | ====The Recitals==== | ||
These are paragraphs that | These are paragraphs that describe the parties' circumstances when the agreement is made, and include the basic facts of their relationship, the names and birth dates of any children, describes the property and debts that the agreement deals with and gives the parties' incomes, among other things. | ||
The recitals are the foundation on which the agreement is built. They should be sufficient to tell a stranger why the parties entered not just into | The recitals are the foundation on which the agreement is built. They should be sufficient to tell a complete stranger why the parties entered not just into any agreement but this particular agreement. | ||
It is important that the recitals be as complete as possible because if anyone tries to challenge the agreement in the future, the recitals will set out the facts that were important to the parties at the time the agreement was made. | It is important that the recitals be as complete as possible because if anyone tries to challenge the agreement in the future, the recitals will set out the facts that were important to the parties at the time the agreement was made. | ||
In the case of a separation agreement, | In the case of a separation agreement, the recitals often look something like this: | ||
WHEREAS: | <blockquote><tt>WHEREAS:</tt></blockquote> | ||
<blockquote><tt>A. Jane and John were married on August 1st, 1993 at Anytown, British Columbia.</tt></blockquote> | |||
A. Jane and John were married on August 1st, 1993 at Anytown, British Columbia. | <blockquote><tt>B. There are two children of the marriage:</tt></blockquote> | ||
<blockquote><blockquote><tt>i) Sally Doe, born on March 5th, 1995, and<br> | |||
B. There are two children of the marriage | ii) Randy Doe, born on April 11th, 1997</tt></blockquote></blockquote> | ||
<blockquote><tt>(together, "the Children").</tt></blockquote> | |||
i) Sally Doe, born on March 5th, 1995, and | <blockquote><tt>C. Jane is presently employed part-time as a mason by ABC Construction Ltd. and has an annual income of approximately $34,000.</tt></blockquote> | ||
ii) Randy Doe, born on April 11th, 1997 | <blockquote><tt>D. John is presently employed full-time as a chef by DEF Resorts Inc. and has an annual income of approximately $45,000.</tt></blockquote> | ||
(together, "the Children"). | <blockquote><tt>E. Jane and John have lived separately and apart since December 25th, 2012 (the "Date of Separation"), when Jane left the family home.</tt></blockquote> | ||
C. Jane is presently employed part-time as a mason by ABC Construction Ltd. and has an annual income of approximately $34,000. | <blockquote><tt>F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had access to the Children every other weekend from Friday after school until Sunday at 7:00pm.</tt></blockquote> | ||
D. John is presently employed full-time as a chef by DEF Resorts Inc. and has an annual income of approximately $45,000. | |||
E. Jane and John have lived separately and apart since December 25th, | |||
F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had access to the Children every other weekend from Friday after school until Sunday at 7:00pm. | |||
...and so forth. Other paragraphs might describe the make, model and value of each party's car, the location and value of the family home, the credits cards owned by the parties and the amounts owing on them. | ...and so forth. Other paragraphs might describe the make, model and value of each party's car, the location and value of the family home, the credits cards owned by the parties and the amounts owing on them. | ||
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====The Operative Clauses==== | ====The Operative Clauses==== | ||
The operative clauses of an agreement are the nuts and bolts of the settlement; they are the essential terms of the agreement and describe each party's rights and obligations are. In the case of a separation agreement, the operative clauses might look like this: | |||
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED IN THIS AGREEMENT, THE PARTIES AGREE AS FOLLOWS: | <blockquote><tt>IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED IN THIS AGREEMENT, THE PARTIES AGREE AS FOLLOWS:</tt></blockquote> | ||
<blockquote><tt>1. Jane and John will live separate and apart.</tt></blockquote> | |||
<blockquote><tt>2. Neither party will directly or indirectly molest, annoy or harass the other or his or her friends, relatives and associates.</tt></blockquote> | |||
<blockquote><tt>3. Except as is specifically provided in this Agreement, Jane and John will each keep all property presently in their possession and control as their own, free and clear of any and all claim by the other.</tt></blockquote> | |||
<blockquote><tt>THE CHILDREN</tt></blockquote> | |||
<blockquote><tt>4. Jane and John will continue to be the guardians of the Children, and John shall have the Children's primary residence.</tt></blockquote> | |||
<blockquote><tt>5. Jane and John will exercise all parental responsibilities with respect to the Children in consultation with each other. Jane and John will make every effort to agree on decisions that need to be made concerning the Children, and will make their decisions in the best interests of the Children. However, in the event that Jane and John cannot agree on a particular decision, John will have the right to make that decision.</tt></blockquote> | |||
<blockquote><tt>6. Jane will have parenting time with the Children every Wednesday night, from the end of school or 4:00pm until 8:00pm, and on every other weekend from the end of school or 4:00pm on Friday until the following Sunday at 8:00pm.</tt></blockquote> | |||
<blockquote><tt>7. Jane will have additional parenting time with the Children the children for one-half of the Children's winter school holiday, the whole of the Children's spring school holiday, and for two two-week periods during the Children's summer school holiday.</tt></blockquote> | |||
<blockquote><tt>CHILD SUPPORT</tt></blockquote> | |||
<blockquote><tt>8. Jane will pay child support to John in the amount of $492 on the first day of each and every month, continuing for so long as the Children remain "children" as defined by the Family Law Act.</tt></blockquote> | |||
...and so forth. Other terms might deal with specific property, like a car or the family home, the payment of debts, the sharing of the children's expenses, who will pay what bills, whether and for how long spousal support will be paid, who will pay for the divorce if the couple are married, which laws will govern the interpretation of the agreement, and so on. | |||
====The Signatures==== | |||
This is the final section of a family law agreement where the parties will each sign their names in the presence of a witness. The parties can sign the agreement at the same time or separately, at different times and in different locations; either way, each party's signature must be witnessed, and the witness, after seeing the party sign the agreement, must sign his or her name to the agreement. The witness usually provides some other information, typically his or her full name, address and occupation. | |||
This is the final section of a family law agreement where the parties will each sign their names in the presence of a witness. The parties can sign the agreement at the same time or separately, at different times and in different locations; either way, each party's signature must be witnessed, and the witness, after seeing the party sign the agreement, must sign his or her name to the agreement. The witness usually provides some other | |||
IN WITNESS WHEREOF, Jane has hereto set her hand and seal at the City of Anytown in the Province of British Columbia, this the 1st day of January, 2011. | <blockquote><tt>IN WITNESS WHEREOF, Jane has hereto set her hand and seal at the City of Anytown in the Province of British Columbia, this the 1st day of January, 2011.</tt></blockquote> | ||
SIGNED, SEALED AND ) | <blockquote><tt>SIGNED, SEALED AND )<br> | ||
DELIVERED by Jane ) | DELIVERED by Jane )<br> | ||
in the presence of: ) | in the presence of: )<br> | ||
) | )<br> | ||
___________________ ) ___________________ | ___________________ ) ___________________<br> | ||
Signature ) JANE DOE | Signature ) JANE DOE<br> | ||
___________________ ) | ___________________ )<br> | ||
Name ) | Name )<br> | ||
___________________ ) | ___________________ )<br> | ||
Occupation ) | Occupation )<br> | ||
___________________ ) | ___________________ )<br> | ||
Address ) | Address )<br> | ||
___________________ ) | ___________________ )</tt></blockquote> | ||
...which would be repeated for John's signature and that of John's witness. | ...which would be repeated for John's signature and that of John's witness. | ||
