Pre-nuptial and Co-Habitation Agreements
Pre-nups, co-habs, and marriage contracts, oh my. What’s the difference?
You’ll want to check out this episode of Access to Justice if you’re getting married, moving in with someone or if you’re a parent or child of someone doing one of those things.
You’ll find out how these agreements can protect family assets when we chat with experienced family lawyer, mediator, and registered collaborative professional Jack Hauptman.
We are typically focusing on safeguarding property, not cash flow when it comes to these agreements. Relationships we are talking about is common-law where the parties have been living together for 3 yrs plus or a marriage (Alberta).
Meaning that a contract can be very solid as it relates to real estate, investments and other property but a contract that centers on support payments like spousal support or child support in the event of a relationship breakdown may not hold up – lawyers tend to shy away from including detail on income. In the 90’s there weren’t too many of these requests, now a days it is brought up a lot. Cost is between $1500 to $15,000 depending on the detail. Basic is most likely for a young person. The costs are more likely to higher the older people get like for second marriages where there are different kids for each spouse. It can be seen like an insurance, we buy insurance for house, cars and our life and sickness but not on our property when we form a union with someone. It is easier to have the conversation early on and everyone should be open and honest – it is a good behaviour at the outset of a relationship to talk about finances. If the couple doesn’t talk about money that may cause problems down the road. When parents gift money – make sure to indicate somewhere like on the memo field of a cheque or on an email who that money is meant for. If it is just your kid, you need to be clear about that. If it is meant for the couple, be clear about that.
The process starts off like a mediation with a lawyer asking people what is important to them.
One worry is around duress ie. If the courts see that this was signed right before the marriage, it could be argued in court that there wasn’t time to consider the consequences. Allow an prove there was ample time for people to consider the details before signing.
You need to sign this written document in front of your lawyer and there must be Independent legal advice (ILA).
Jack has been practicing law for over 35 years. He was born and raised here in Edmonton and graduated from the University of Alberta. He was admitted to the Alberta Bar in 1973.
Jack was a partner at the firm of Hauptman Hart Cherkawsky and then Hauptman Cherkawsky Hobbs from 1977 to 2012. During his legal career he obtained experience in many areas of the law including, criminal and civil litigation, residential real estate transactions, builders liens, wrongful dismissal, employment issues, and family law.
Since 1990 Jack has concentrated his practice on the area of family law and since 2002 on the area of Collaborative Divorce and Mediation. His experience and training sees him working with clients who are often business owners, executives, professionals, senior employees or their spouses who are going through divorce. He works collaboratively with other similarly trained lawyers to create unique settlements and, if possible, avoid litigation.
Jack is a member of the Association of Collaborative Professionals and has been actively involved in the continuing legal education of lawyers, including the presentation of papers on a variety of topics. Jack taught the Parenting After Separation Seminar for 10 years and is a Child Support Resolution Officer.
In his free time Jack enjoys his grandchildren, travel, curling, photography and woodworking. He is an avid Edmonton Eskimo fan and has had season tickets for well over 35 years.