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Difference between revisions of "Family Law Agreements"
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→Negotiating the terms of an agreement
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Family law agreements are about really important things like where the children will live, who will pay support to whom and how the parties will divide their property. As a result, the terms of the agreement are almost always the result of lots of talking and negotiating. It is critical that: | Family law agreements are about really important things like where the children will live, who will pay support to whom and how the parties will divide their property. As a result, the terms of the agreement are almost always the result of lots of talking and negotiating. It is critical that: | ||
*each person has all of the information that is necessary to figure out what's a good deal and what's a bad deal, | *each person has all of the information that is necessary, to figure out what's a good deal and what's a bad deal, | ||
*each person understands his or her legal rights and obligations to know what's a good deal and what's bad deal, | *each person understands his or her legal rights and obligations, to know what's a good deal and what's bad deal, | ||
*each person is able to express his or her views and contribute to | *each person is able to express his or her views and contribute to negotiating the agreement, and | ||
*there is no pressure to reach an agreement beyond the importance of reaching a reasonable agreement and saving money on legal fees and court <span class="noglossary">costs</span>. | *there is no pressure to reach an agreement on either party, beyond the importance of reaching a reasonable agreement and saving money on legal fees and court <span class="noglossary">costs</span>. | ||
Properly negotiating and entering into a family law agreement isn't simply a matter of putting the important parts on paper and signing the document. There must be fairness in the way an agreement is negotiated, fairness in the way it is drafted, and fairness in the way it is signed. The people who are negotiating the agreement must be able to understand the agreement, be capable of agreeing to it, and agree to it voluntarily. This is what s. 93(3) of the ''[[Family Law Act]]'' says about agreements for the division of property and debt: | Properly negotiating and entering into a family law agreement isn't simply a matter of putting the important parts on paper and signing the document. There must be fairness in the way an agreement is negotiated, fairness in the way it is drafted, and fairness in the way it is signed. The people who are negotiating the agreement must be able to understand the agreement, be capable of agreeing to it, and agree to it voluntarily. This is what s. 93(3) of the ''[[Family Law Act]]'' says about agreements for the division of property and debt: | ||
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*The agreement must be in writing. (While oral agreements have been upheld by the courts, it can be very difficult to establish the terms of the agreement, and oral agreements cannot be enforced until a court has determined what the terms of the agreement are.) | *The agreement must be in writing. (While oral agreements have been upheld by the courts, it can be very difficult to establish the terms of the agreement, and oral agreements cannot be enforced until a court has determined what the terms of the agreement are.) | ||
*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 | *The parties must both sign the agreement of their own free will, without unfair pressure by the other party. | ||
*The agreement must be properly executed, | *The agreement must be properly executed, which means being signed by the parties in the presence of at least one witness. | ||
As a general rule, each | As a general rule, each person who enters into a family law agreement should get ''independent legal advice'', advice from his or her own lawyer, before the agreement is signed about: | ||
*what the agreement means, | *what the agreement means, | ||
*what rights and obligations the agreement gives each party, | *what rights and obligations the agreement gives to each party, | ||
*how the agreement does or doesn't limit the other legal remedies that might be available, | *how the agreement does or doesn't limit the other legal remedies that might be available, | ||
*how the agreement may affect each | *how the agreement may affect each person over the short- and long-term, and, | ||
*the options and remedies that would have been available if everyone had decided to go to court instead of settling things with an agreement. | *the options and remedies that would have been available if everyone had decided to go to court instead of settling things with an agreement. | ||
Independent legal advice is important for two reasons: it ensures that the parties to the agreement know exactly what their rights and obligations are; and, it makes the agreement stronger by preventing a party from claiming later on that he or she didn't fully understand what the agreement meant or how it would impact him or her. If you really want to make sure that your agreement will stand the test of time, you've got to make sure that you and the other party have both seen a lawyer about the agreement! | |||
===Drafting an agreement=== | ===Drafting an agreement=== | ||