Edmonton Prenuptial Agreement Lawyers Serving Alberta and Western Canada
The idea of a prenuptial agreement is unpleasant for many. Some may regard agreeing on terms of divorce at the beginning of marriage as bad luck.
For the less superstitious, it may seem cold and mercenary to discuss the division of property and spousal support in the event of a separation, when the couple has only just decided to spend the rest of their lives together.
A prenuptial agreement does not cheapen your commitment to your spouse-to-be, nor does it predict the end of a partnership. In fact, creating a prenuptial agreement can save a lot of undue stress, suffering, and expensive legal fees in the off chance that you need to enforce it.
Many couples who draw up a prenuptial agreement feel not only more legally secure, but more united with and knowledgeable of their partner.
The process affords the couple the opportunity to resolve misunderstandings and consider issues they may not have thought about before, such as questions of property ownership, unequal incomes, and arrangements for children.
A strong prenuptial agreement allows each person to start their new life on equal footing.
What is a Prenuptial Agreement in Alberta?
A prenuptial agreement (or “prenup”) is a contract drawn up and signed by two people who plan to marry. Although most prenups lay out the terms of debt and asset division in the event of a divorce, Alberta law expands the function of a prenup to encompass terms applicable at any point during a marriage.
As the name indicates, the couple enters into a prenuptial agreement before getting married, but it is only binding after the marriage has taken place.
The law sets forth certain requirements that must be met in order for a prenup to be considered enforceable. These are:
- Each spouse must be advised by separate legal counsel;
- Each spouse must sign the prenup “freely and voluntarily without any compulsion” from the other spouse;
- Each spouse must understand the Family Property Act standards, and that they are forfeiting those claims in favour of the terms set forth in the prenup;
- Each spouse must understand the effects and functions of the prenup; and
- Each spouse must sign a written agreement affirming the above before different lawyers. These lawyers may not represent the other spouse.
Alberta law has made it easier for unmarried couples and persons in qualifying long-term relationships, known as Adult Interdependent Relationships, to proactively create legal contracts detailing separation terms. These contracts are called cohabitation agreements.
The skilled lawyers at Chadi & Company can help you determine whether you and your partner qualify for a cohabitation agreement and if entering into one is right for you.
Do You Need a Cohabitation Agreement?
If you and your partner want greater control over what will happen to your assets and debts in the event of future separation, creating a cohabitation agreement may be in your best interest.
Doing so is definitely encouraged if any of the scenarios below apply to your unique relationship:
- You own individual property;
- You own joint property;
- You have significant assets, and/or you expect to accumulate significant assets;
- You own a business, whether individually or jointly;
- You have a pension; and
- You have children together.
To qualify as a “common law” couple or as an AIP, at least one of the following situations must apply to you:
- You have lived together for at least three years;
- You have lived together with some level of permanence and share a child; or
- You have entered into an adult interdependent relationship.
Why Do I Need a Prenuptial Agreement?
A prenuptial agreement is not legally required to get married in Alberta, but the benefits are numerous. Alberta’s Family Property Act sets forth standards by which property is divided, support is allocated, and parents are awarded custody.
In the event of a divorce, if you do not have a prenuptial agreement and cannot agree on certain terms, such as spousal support, child custody, or division of property, an Alberta court will decide for you, using the Family Property Act standards as a guide.
These standards may not be favourable to you, or they may not work advantageously in your particular situation. A prenuptial agreement avoids this legal hassle and gives you more control over how you and your future spouse will proceed, should you decide to divorce.
Do I Need a Lawyer to Arrange a Prenuptial Agreement?
You may not need a lawyer in order to draft a prenuptial agreement, but you do need to seek legal counsel before signing, and both parties must sign it in the presence of a lawyer. If you fail to complete these steps, your prenup is not considered legally valid.
While not required by law, it’s in your best interest to involve a lawyer when drafting your prenup, as it will make the process much easier, while simultaneously ensuring that your contract is strong and legally binding. Your lawyer will ask you specific questions to learn more about your unique circumstances, such as:
- What property do you own?
- Is the property individually or jointly owned by your spouse?
- Do you have, or plan to have, any children?
- What is your income?
- What is your spouse’s income?
- Do you have any individual or joint debts?
Beyond just making sure that the terms of the prenup are fair and in your best interest, your lawyer can ensure that it’s a legally enforceable contract.
If you draft your own agreement without understanding the rights you are giving up under the Family Property Act, or what constitutes “enforceable terms,” you may create an unfair or unenforceable contract.
What Is Typically Included in a Prenuptial Agreement?
Prenuptial agreements are highly customizable, as long as they are enforceable and not in violation of the law. Some of the most common terms set forth in a prenuptial agreement are:
Division of property: This includes real estate, financial assets, vehicles, furniture, companion animals, and pension funds. Your lawyer will help you sort your property by what you and your spouse individually own, and what you own together.
Spousal support: If one spouse makes more than the other, but both benefit and rely on their pooled income, the couple may arrange for the higher earner to pay support to the other spouse. Spousal support helps the lower-earning spouse cover their living expenses during (and sometimes after) a separation.
Child support and custody: No matter the state of a marriage, parents are responsible for caring for and supporting their child. Making arrangements for the amount and type of support, as well as the stipulations of custody and guardianship, will ensure that children are well cared for and that each parent will have reasonable access to and decision-making power over their children.
Savings and income plans: These arrangements can include the amount that each spouse contributes to joint savings and living expenses, as well as considerations made for income changes, such as job loss and continued education. Spouses should discuss which debts and investments will remain separate and which will be shared.
Changes in circumstances: It may be prudent to include a clause that allows for changes to the contract when certain events come to pass, such as the birth of children.
Time limits: Some prenups contain contractual time limits, in which all or parts of the contract end once a certain event occurs. For example, some people stipulate that spousal support will only be provided until the supported spouse remarries or finds sufficient income.
Request to review: A good prenup should include a term that allows either spouse to review the contract at any time.
Contact Chadi & Company Today
If you are considering drafting up a prenuptial agreement, the skilled legal team at Chadi & Company can help you understand your rights and responsibilities.
Our knowledgeable, compassionate family law team will help you create a prenuptial agreement tailored to your unique needs and goals.