Do We Need a Marriage Contract: Understanding How a Legal Agreement Can Strengthen Your Life Together

204 Pages·2010·0.81 MB·English

by  Michael G. Cochrane

DO WE NEED A
M A R R I A G E

C O N T R A C T ?

DO WE NEED A

M A R R I A G E

C O N T R A C T ?

Understanding How
a Legal Agreement
Can Strengthen
Your Life Together
MICHAEL G. COCHRANE

. . . .
B A LL B
Copyright © 2010 by Michael G. Cochrane
All rights reserved. No part of this work covered by the copyright herein may be re-
produced or used in any form or by any means—graphic, electronic, or mechanical
without the prior written permission of the publisher. Any request for photocopy-
ing, recording, taping, or information storage and retrieval systems of any part of
this book shall be directed in writing to The Canadian Copyright Licensing Agency
(Access Copyright). For an Access Copyright license, visit www.accesscopyright.ca
or call toll free 1-800-893-5777.
Care has been taken to trace ownership of copyright material contained in this
book. The publisher will gladly receive any information that will enable them to
rectify any reference or credit line in subsequent editions.
This publication is designed to provide accurate and authoritative information in
regard to the subject matter covered. It is sold on the understanding that the Pub-
lisher is not engaged in rendering professional services. If professional advice or
other expert assistance is required, the services of a competent professional should
be sought.
Library and Archives Canada Cataloguing in Publication Data
Cochrane, Michael G. (Michael George), 1953-
Do we need a marriage contract? : understanding how a legal agreement can
strengthen your life together / Michael G. Cochrane.
Includes index.
ISBN 978-0-470-73751-4
1. Antenuptial contracts—Canada—Popular works. 2. Husband and
wife—Canada—Popular works. I. Title.
KE559.C59 2010 346.7101’662 C2010-900204-0
KF529.C59 2010
Production Credits
Cover design: Adrian So
Interior text design and typesetter: Natalia Burobina
Cover photo: ©Getty Images/Brand X Pictures/Brian Haglwara
Printer: Printcrafters
John Wiley & Sons Canada, Ltd.
6045 Freemont Blvd.
Mississauga, Ontario
L5R 4J3
Printed in the Canada
1 2 3 4 5 PC 14 13 12 11 10
CONTENTS
Acknowledgements ix
Caution about Legal Information xi
Chapter 1: Is This Book for You? 1
Divorce Nightmare: Don’t Let This Happen to You 2
Why Marriages Need Contracts 4
Terminology 6
Chapter 2: Eyes Wide Open: Due Diligence and
Relationship Building 7
Why Due Diligence? 7
Your Partner’s Health 8
Criminal Problems 10
Financial Problems 11
Relationship Building 13
What Makes for a Mature Relationship? 14
Have Realistic Expectations 20
Develop Good Problem-Solving Skills 24
Ten Elements of Good Problem Solving 25
Chapter 3: Your Rights and Responsibilities to Each Other
If You Are Married but Do Not Have a Marriage Contract 29
The Significance of the Date of the Marriage 30
What about Having Children? 31
What about Buying Property? 35
What about Income and Expenses? 37
What about Medical/Dental Health Benefits? 38
What about Income Tax Returns? 38
What about Wills and Powers of Attorney? 38
Chapter 4: The Legal Consequences of Marriage: Rights
and Responsibilities If You Separate 41
When Are You separated? 42
What Happens If We Have Children and Separate? 45
vi
Custody and Access 45
Financial Support 48
What Happens to Property That We Owned Before We Were
Married? 52
What Is Property? 52
Property Owned Before Marriage 53
Property Acquired During the Marriage 54
What If One of Us Needs Financial Support After Separation? 61
What If We Move After Marriage? 63
Are There Time Limits for Bringing a Claim? 63
Chapter 5: Legal Consequences of Marrying: Rights and
Responsibilities If One of You Dies or Is Injured 65
Joint Property 66
Joint Accounts 67
Having a Will and Not Having a Will 68
Examples of Common Situations 69
Powers of Attorney for Personal Care and Property 70
Support 70
Chapter 6: Marriage Contracts: Creating Your Own Set of
Rights and Obligations 73
An Overview of a Marriage Contract 73
Providing for Children 75
Biological Children of the Couple 75
A Specific Formula for Childcare When a Career Change
Arrives 77
Spousal Support, Releases, and Sunset Clauses 77
Providing for Your Support 78
Providing for Death, Injury, or Illness 81
What About Your Property? 85
Sunset Provisions and Termination Clauses 91
Managing the Household Budgets and Other Matters 91
Conditional Gifts from Third Parties 93
Contracts Made Outside the Jurisdiction in which a Couple
Resides 94
Minors and the Mentally Incapable 94
vii
Breakup to Makeup: Reconcilation 94
Enforcement of the Marriage Contract 95
Dispute Resolution 97
Chapter 7: Having “The Conversation” 101
The “Do’s” 102
Do Make a Plan and Have a Purpose 102
Do Have an Answer to the Question, “Why Do We Need
a Marriage Contract?” 102
Do Give Yourself Enough Time 103
Do Use It as an Opportunity to Discuss the Need for Wills,
Powers of Attorney, and Insurance 104
Do Keep It Simple 104
Do Be Fair and Respectful 105
The “Don’ts” 105
Don’t Present Your Partner with a Draft Contract 105
Don’t Mention Lawyers 106
Don’t Rush the Discussion 106
Don’t Present a One-sided Option 107
Don’t Blame It on Other People 107
How Do You Have “The Conversation” If You’re Already
Married? 108
Chapter 8: The Role of Your Lawyer 111
Why Do People Fear Hiring a Lawyer? 111
Cost 112
Control 112
Why Do You Need a Lawyer? 113
Why Do You Need a Lawyer with Family Law Experience? 114
Choosing Your Lawyer and Managing the Relationship 115
Buying Some Advice, but Not Independent Legal Advice 117
Using a Mediator 117
Chapter 9: Signed, Sealed, and Delivered 119
The Three “Must-Do’s” 119
1. The Contract Must Be in Writing 119
2. Both Parties to the Contract Must Sign It 120
viii
3. The Signatures Must Be Witnessed 121
Obtain Independent Legal Advice 122
Doing It Yourself 124
How to Ruin Your Marriage Contract 124
Some Tips for Negotiating and Drafting Marriage Contracts 134
Chapter 10: Same-Sex Couples 137
Getting Married Is the Easy Part 137
Sperm Donation 138
Same-Sex Families, Adoption, and Sperm Donors 138
Transgendering 139
Chapter 11: Let’s Look at a Marriage Contract 141
Marriage Contract 142
Separation Agreement with Former Spouse (If this Applies) 145
Ownership and Division of Property 145
Support 155
Release of Spouse Support 155
Certificate of Independent Legal Advice 166
Appendices 169
Appendix A: My Marriage Contract Worksheet—What I Own
and What I Owe 170
Appendix B: Marriage Contract Schedule A and
Schedule B 172
Appendix C: Some Considerations and Key Document
Checklist 174
Appendix D: Consent for Disclosure of Criminal History
Information 177
Appendix E: Permission to Conduct Credit References 179
Index 181