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Difference between revisions of "Family Law Agreements"
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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 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 | 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 their 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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*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 | *each person understands their legal rights and obligations, to know what's a good deal and what's a bad deal, | ||
*each person is able to express | *each person is able to express their views and contribute to negotiating the agreement, and | ||
*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>. | *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>. | ||
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*you have to make full disclosure of your income, your expenses, your assets and your debts, and any other information that is important to the agreement, | *you have to make full disclosure of your income, your expenses, your assets and your debts, and any other information that is important to the agreement, | ||
*you can't exploit the other party's weaknesses to get a good deal for yourself, | *you can't exploit the other party's weaknesses to get a good deal for yourself, | ||
*you have to make sure that the other party understands exactly what the agreement means and how it will affect | *you have to make sure that the other party understands exactly what the agreement means and how it will affect their life, both now and in the future, and, | ||
*you can't force or pressure someone to sign the agreement, you can't cheat someone into signing the agreement, and the agreement must be reasonable. | *you can't force or pressure someone to sign the agreement, you can't cheat someone into signing the agreement, and the agreement must be reasonable. | ||
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*The agreement must be properly executed, which means being signed by each of the parties in the presence of at least one witness who is not a party to the agreement. | *The agreement must be properly executed, which means being signed by each of the parties in the presence of at least one witness who is not a party to the agreement. | ||
As a general rule, each person who enters into a family law agreement should get ''independent legal advice'', advice from | As a general rule, each person who enters into a family law agreement should get ''independent legal advice'', advice from their own lawyer, before the agreement is signed about: | ||
*what the agreement means, | *what the agreement means, | ||
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*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 | 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 they didn't fully understand what the agreement meant or how it would impact them. 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=== | ||
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====The signatures==== | ====The signatures==== | ||
The last part of a family law agreement is where each of the parties will 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 | The last part of a family law agreement is where each of the parties will 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 their name to the agreement. The witness usually provides some other information, typically their full name, address, and occupation. The page with the parties' signatures should include at least one operative paragraph of the agreement. | ||
<blockquote><tt>SIGNED by Jane )<br> | <blockquote><tt>SIGNED by Jane )<br> | ||
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This would be repeated for John's signature and that of John's witness. | This would be repeated for John's signature and that of John's witness. | ||
The witnesses to the parties' signatures do not become parties to the agreement and the agreement cannot be enforced against them. The signature of the witness simply says that | The witnesses to the parties' signatures do not become parties to the agreement and the agreement cannot be enforced against them. The signature of the witness simply says that they saw the particular party sign the agreement, in case someone ever denies signing the agreement. | ||
It is also a good idea for each of the parties and the witnesses to initial each page of the agreement, other than the page with the parties' signatures. | It is also a good idea for each of the parties and the witnesses to initial each page of the agreement, other than the page with the parties' signatures. | ||
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*'''Independent legal advice:''' Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the lawyers who provided the independent legal advice witness the parties' signatures on the agreement, and sign certificates of independent legal advice. | *'''Independent legal advice:''' Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the lawyers who provided the independent legal advice witness the parties' signatures on the agreement, and sign certificates of independent legal advice. | ||
*'''Respect vulnerabilities:''' Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in | *'''Respect vulnerabilities:''' Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in their right mind, down tools and come back to the table later. Consider the need for counselling or therapy before continuing. | ||
*'''Make full disclosure:''' Always make full disclosure of all financial facts, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment <span class="noglossary">account</span> balances, outstanding debts, property values, values of shares and options, art and jewelry appraisals, and so on. | *'''Make full disclosure:''' Always make full disclosure of all financial facts, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment <span class="noglossary">account</span> balances, outstanding debts, property values, values of shares and options, art and jewelry appraisals, and so on. | ||
*'''Never lie:''' Intentionally misleading someone about the value of something, the amount of a debt, past income and future income expectations, or any other relevant fact will always undermine the strength of an agreement. Be scrupulously honest and transparent at all times. | *'''Never lie:''' Intentionally misleading someone about the value of something, the amount of a debt, past income and future income expectations, or any other relevant fact will always undermine the strength of an agreement. Be scrupulously honest and transparent at all times. | ||