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Difference between revisions of "Family Law Agreements"
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→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 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. | 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=== | ||
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 | *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 their legal rights and obligations | *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 their views and contribute to negotiating the agreement, and | *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 their life, both now and in the future, and | *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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*what rights and obligations the agreement gives to 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 person over the short- and long-term, and | *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. | ||
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The recitals describe the parties' circumstances when the agreement is made in a summary sort of way. They include the basic facts of their relationship, give the names and birth dates of any children, describe the property and debts that the agreement deals with, and describe the parties' incomes, among other things. | The recitals describe the parties' circumstances when the agreement is made in a summary sort of way. They include the basic facts of their relationship, give the names and birth dates of any children, describe the property and debts that the agreement deals with, and describe the parties' incomes, among other things. | ||
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. | 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. | ||
In the case of a separation agreement, the recitals often look something like this: | In the case of a separation agreement, the recitals often look something like this: | ||
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<blockquote><tt>F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had parenting time with the Children every other weekend from Friday after school until Sunday at 7:00pm.</tt></blockquote> | <blockquote><tt>F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had parenting time with the Children every other weekend from Friday after school until Sunday at 7:00pm.</tt></blockquote> | ||
The rest of the recitals will continue in the same way. Other recitals might describe the make, model and value of each party's car, the address and value of the family home, the | The rest of the recitals will continue in the same way. Other recitals might describe the make, model, and value of each party's car, the address and value of the family home, the credit cards owned by the parties and the amounts owing on them, and so on. Essentially, every fact that is relevant to the agreement should be put into the recitals to the agreement. | ||
By the way, the parts where you see a capitalized word in brackets, like <tt>(the "Date of Separation")</tt>, are called ''defined terms''. These are very helpful because you can use a defined term to refer to the same thing throughout an agreement. Instead of saying <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia</tt> every time you need to talk about that property, you could say <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia (the "Family Home")</tt> once, and whenever you need to mention the property after that you can just say <tt>the Family Home</tt>. | By the way, the parts where you see a capitalized word in brackets, like <tt>(the "Date of Separation")</tt>, are called ''defined terms''. These are very helpful because you can use a defined term to refer to the same thing throughout an agreement. Instead of saying <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia</tt> every time you need to talk about that property, you could say <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia (the "Family Home")</tt> once, and whenever you need to mention the property after that you can just say <tt>the Family Home</tt>. | ||
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<blockquote><tt>JANE AND JOHN AGREE THAT:</tt></blockquote> | <blockquote><tt>JANE AND JOHN AGREE THAT:</tt></blockquote> | ||
<blockquote><tt>1. Jane and John will live separate from each other.</tt></blockquote> | <blockquote><tt>1. Jane and John will live separate from each other.</tt></blockquote> | ||
<blockquote><tt>2. Neither party will molest, annoy or harass the other or his or her friends, relatives and associates.</tt></blockquote> | <blockquote><tt>2. Neither party will 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>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>THE CHILDREN</tt></blockquote> | ||
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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 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. | 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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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. | ||
For a quick summary of how to execute a family law agreement, see the ''How Do I?'' part of this resource for [[How Do I Execute a Family Law Agreement?]] Look under ''Family Law Agreements''. | For a quick summary of how to execute a family law agreement, see the ''How Do I?'' part of this resource for [[How Do I Execute a Family Law Agreement?]]. Look under ''Family Law Agreements''. | ||
==Negotiating considerations== | ==Negotiating considerations== | ||