8 Tips to Consider When Drafting a Domestic Contract

Two people signing a contract representing a domestic agreement

Writing a domestic contract can be a lengthy and tedious process. These eight tips may be helpful in the drafting process. The three most common domestic contracts are marriage contracts (or prenups), cohabitation agreements, and separation agreements. They govern different relationships and parts of family law.

Marriage contracts or prenuptial agreements are for those about to marry or who are already married. The contract lays out rights and obligations for the marriage, or what happens if the couple separates, the marriage is annulled or dissolved, or what happens on death.

A cohabitation agreement is for people cohabitating or intending to cohabitate. It sets rights and obligations while the couple cohabitates, what happens if they no longer live together or on death.

Separation agreements are for couples who cohabited and are now living separate and apart. This includes married couples living together who decide to separate. It settles their rights and obligations to each other and any children now that the relationship is over.

While these domestic contracts manage different relationships, all these contracts would benefit from the following eight tips.

1. Forget Your Preconceptions

There are plenty of preconceptions about domestic contracts. One common one is, “I’m not rich and have no assets. I don’t need a domestic contract.” Another usual is, “I don’t need a marriage contract or cohabitation agreement because I’m not going to break up.” Perhaps you’ve heard, “A father can’t get joint parenting time of a child, so the settlement is already set in stone. Why make a separation agreement?”

None of these are true. Preconceptions can be misconceptions. It is essential to ensure you have all the facts. One way to ensure correct information is to consult with a lawyer. Domestic contracts have many benefits and may prevent future problems. Marriage contracts and cohabitation agreements can avoid horrible and costly fights if the relationship does end. This might be especially important if you have debts and no assets. The rules about parenting time and decision-making responsibility in separation agreements are about what is in a child’s best interest, which does not always mean the mother gets most of the parenting time.   

2. Know What You Want

It is important for both individuals in a relationship to spend time on their own and decide what is truly important to them before negotiating a domestic contract. When you know what you want, it becomes easier to negotiate. If you know what is most important, what you are willing to give up, and what does not matter, it is easy to exchange something you don’t need for a deal-breaker.

Knowing what you want before negotiating can make negotiations less emotional. It is easier to achieve your aspirations when you are less emotional and have a clearer head. When it comes to your family, it is important to do everything possible to get your desires.   

3. Communicate

Communication with your partner is critical. The clearer you communicate, the easier it is for your partner to understand. If they understand, they may be more inclined to give you more of your desires. Communicating is the only way your partner knows what you want. The better you know what you want, the easier it is to communicate with your partner.

Communication might rid your partner of any misconceptions they might have about domestic contracts. Misconceptions can be a barrier to attaining a domestic contract.

Also, if you need something from your partner, ask for it. Asking questions and listening to the answers is an important tool when negotiating a domestic contract. You want to have complete information to make informed decisions about your domestic contract.

4. Be Honest

With a domestic contract, it is important to make informed decisions. This requires full disclosure of finances, assets, and debts from both parties. When you fully disclose, your partner could be more forthright. Also, incomplete disclosure of your finances may be grounds for a court to rule your contract is not valid.

5. Be Specific

The government sets some default rules, but domestic agreements can alter these defaults with specific provisions. You might want important family heirlooms kept or specific spousal support arrangements. It is important to be specific about intentions to avoid any fighting if the relationship ends. If you are not specific, each party may have a different understanding, which can cause disagreements.

You want to ensure that topics are discussed thoroughly. Your agreement should cover areas that concern your current situation and but also issues that could apply in the future. Not discussing a topic, like asset division, in your agreement, may cause conflict. It is important to be specific and thorough.

Conflicts in family law cost money, so it is best to be as specific as possible in agreements, causing less conflict. When relationships end, it creates significant emotional turmoil and having specific next steps can avoid even more harm.

6. Don’t Pressure Either Party

No matter how frustrated you get, it is crucial not to pressure your partner. You don’t want to put undue influence on your partner or duress of any kind. If you do, that would be a reason for a court to overturn part of your agreement or all of it. One way to avoid allegations of undue influence or duress is to ensure your partner gets independent legal advice.

7. Get Independent Legal Advice

Getting independent legal advice is imperative for an agreement. Each individual should get independent legal advice from a lawyer before signing. A lawyer may be helpful before negotiating, as they can help you determine what you want and what is most important to you. Lawyers may negotiate or give you tips for negotiating your domestic contract.

A lawyer can give specific advice on what can and cannot go into an agreement. They have experience and may provide insight into topics you didn’t even think about including.

Further, not getting independent legal advice may be a reason why the domestic contract is invalidated.

8. Consider Mediation if Necessary

Lastly, don’t be afraid of mediation if you are having trouble agreeing. Mediation is when an impartial third party helps facilitate discussions between parties. Lawyers play a role by either participating directly in the mediation or preparing a client for the mediation. A mediator does not provide legal advice but helps parties agree. You will still need to prepare for mediation, including disclosure and knowing what you want. This is a forum that will help you reach an agreement if you are struggling.

Contact Bortolussi Family Law in Vaughan for the Drafting and Review of Marriage Contracts and Cohabitation Agreements

If you have any questions about domestic contracts, please contact the knowledgeable family law lawyers at Bortolussi Family Law in Vaughan. To discuss your matter with a member of our team, contact us by phone at 416-987-3300 or reach out online.

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