Prenuptial Agreement Lawyer Kitchener

We help clients draft a solid prenuptial agreement to protect your net worth.

What is a Prenuptial Agreement?

Are you concerned about protecting your property or assets in the event of divorce? A prenup is a legally binding contract designed to address this concern. With a prenup, you can identify certain assets, including things like property, investment accounts and pension funds that will not be divided with your spouse in the event of a divorce. The terms of the prenup can exclude the value of such assets, including any future growth in its value from the division of property. A prenuptial agreement can also be used to protect a family inheritance. A well-drafted prenup will provide clear terms so that both parties understand what will happen to all their assets in the unlikely event of divorce. Without a prenup, property is divided according to the law. Most couples assume everything is shared equally but this is not always the case and many find this to be unfair. This is why couples are advised to reach out to a prenuptial lawyer in Kitchener who will help draft a document that protects and divides assets and property in a fair manner.

What Should be Included in a Prenup?

A properly drafted prenup provides clarity and eases anxiety on matters of property division after a divorce. This document doesn’t have to be complex but it does need to be drafted in a certain way to ensure it will be upheld by a judge if it is ever challenged. The terms should be reasonable for both parties. Below are a few things that we recommend including in a prenup.
  • All the assets, including the property you don’t want to be shared in a divorce. This includes investment accounts, bank accounts, property, cash, stock options and business interests. You should also include rare assets like specialty art.
  • Any debt that you wouldn’t want included in equalization. This is often important if one spouse has significant debt. Your lawyer can help recommend exclusions, such as what to do if the amount is paid off before the breakup.
  • Include terms that protect adult children’s interests, such as leaving separate property for the children and making sure it’s excluded from equalization. This helps protect the children if one parent passes on.
  • Prenups can also address spousal support matters. This agreement can stipulate the amount and period that spousal support will be paid or that spousal support isn’t paid at all.

What Should not be included in a Prenup?

  • Parenting decisions: Issues like parenting time and child support cannot be covered in a prenuptial agreement. You cannot even dictate the amount of money you will pay in child support. Child-related matters in a divorce will be based on the law.
  • You cannot include provisions that are unfair in regards to your matrimonial home. For instance, forcing your spouse to move out of your family home after the divorce could be considered unlawful. Both spouses have a right to the matrimonial home regardless of who is on the title.
  • You cannot include a provision for what will happen if your spouse cheats. The judge will not enforce a penalty for cheating simply because it was included in a prenup.
  • The prenup terms and provisions should not be perceived as an incentive for divorce.
  • If the provisions of the prenup are also very one-sided and outrightly unfair for any reasonable person to sign, this may not be enforced in court.

Do I Need a Lawyer for a Prenup?

If you draft a prenuptial agreement without a lawyer, it may still be considered a legally binding document. This is because, legally, you don’t need to hire a lawyer for a prenup.  However, the agreement still must meet all the requirements of the law, which most handmade and online agreements do not.  The biggest risk you’ll take with this approach is that you risk coming up with a document that may not be enforceable in court.  Spending money on having a properly drafted prenup is worth every penny for the peace of mind it will provide. Legal advice is also paramount when creating such documents as you will get the guidance to ensure every provision stated therein is valid and complies with the law. Having a prenuptial lawyer in Kitchener helps to avoid the entire document being overturned when you need to protect your assets after a divorce. Consider the amount of money you spend on legal fees to have a prenup drafted as a small investment to protect your entire net worth.

Frequently Asked Questions

The terms marriage contract and prenuptial agreement are often used interchangeably. However, there are different types of marriage contracts, and a prenup is one of them. The prenuptial agreement is a contract that is signed before a couple marries, that provides clear provisions on what would happen to each party’s assets and debts in the event of a breakup. Couples sign this document before getting married to address issues that may impact their net worth after a divorce.

If a couple is not planning on getting married, but they are living together in this is considered cohabitation, they can sign a cohabitation agreement instead of a prenup. This agreement stipulates what would happen to their assets and debts should they break up. The cohabitation contract can also address spousal support matters – how much and how long it will be paid, if spousal support is paid at all. 

It can be difficult to bring up the topic of signing a prenup with your partner. However, the sooner you express your intention to have a prenup, the better. Most couples will even sign a prenup after their wedding to avoid rushing into it weeks or months leading up to the big day.

The most important thing is to ensure that your partner has adequate time to process the idea, especially if you didn’t discuss this while dating. 

The entire process of preparing the prenup will take some initiative from you and your partner. You will need to provide information about your assets and debts, including putting together your financial statements.

You can each have a separate lawyer so that you have someone to properly explain to you exactly what you’re about to sign.

Some couples prefer to sign an agreement that stipulates the terms of their divorce after their wedding. In this case, this document is called a post-nuptial agreement. The only difference between a prenup and a postnup is that the latter is signed after the wedding. The postnup will also include details on which assets will be divided, how debts will be shared and the terms of issuing spousal support, if any. Similarly, the post-nuptial agreement shouldn’t have provisions on child support, parenting time and decision making. Both agreements are legally binding once they are signed.

The home that you and your spouse lived in after getting married is considered the matrimonial home. The law stipulates that each person has a right to live in the matrimonial home regardless of the person whose name is on the title. This means your spouse cannot kick you out of the family home even if you signed a prenup. However, the prenup can have provisions that will determine who will keep the property when you divorce. Prenup terms may also determine how any proceeds from selling the family home will be divided. If a prenup doesn’t exist, both persons will have equal rights to the matrimonial home regardless of who is on the title. That’s why prenups are important to help protect the person who contributed more to the property in the relationship.

If you own a home, have any investments, a pension, RRSPs, savings or a pension, a prenup is a must.  If your parents are lending or giving you money to purchase a home, you need to sign a prenup.  Contrary to what most people think, prenups aren’t just for the super-wealthy. You should consider signing a prenup to protect your income or assets from the equalization of property, which can be somewhat unfair if one person is contributing more or brought more to the relationship than the other. Signing a prenup doesn’t mean that your spouse will be left destitute after the divorce. This contract must be fair. Any prenup that is outrightly unfair and one-sided can be challenged in court and overturned by a judge. These agreements are only in place to help ensure that there is some form of protection after a breakup. 

Discussions about prenups can be part of your overall discussions about your finances.  Explaining why you think a prenup is a good idea will help your partner feel more open to the idea.  Open up to your spouse regarding your desire to have a prenup in place. Be honest when sharing your reasons for wanting a prenup. Some of our clients have signed a prenup to protect their family inheritance or preserve special family assets that have been there for decades. We know that couples have unique needs when signing a prenup, and we can help you avoid the emotional distress that comes with losing family assets you truly treasure.

If you’re getting a prenup simply because you want to be sure that you will be taken care of, be honest about it with the other person. At the end of the day, clear and honest communication regarding finances will create a more fulfilling relationship.

It’s best to add this conversation about a prenup when talking about finances with your partner. It should be just another item on your checklist that you want to go over before tying the knot.

Even though there are situations where prenups are challenged in court, this is often quite difficult to do with a properly drafted and fair agreement. When a prenup is properly prepared, it’s very hard to challenge it. Working with an experienced prenup lawyer in Kitchener helps to ensure that the agreement follows the law. The prenup lawyer should advise clients on full and honest financial disclosure to ensure the contract is enforced.

Call a lawyer if you suspect that the prenup agreement you signed should be set aside. Your lawyer will apply to the court, requesting the judge to either throw out the entire agreement or provisions that may be considered invalid.

The 3 main reasons why a prenuptial contract may be set aside are:

  • If one person signed it under duress or pressure;
  • If it is considered very unfair (unconscionable); and
  • If there was some form of fraud or misrepresentation, such as a party failing to provide full disclosure of assets.

Even if you were under pressure to sign the agreement, one must prove to the court that there was no realistic alternative but to submit to that pressure. Most prenups are set aside because they are considered one-sided and unfavourable.

You have two years from the time you find the contract to be unfavourable to apply for it to be set aside.

Any assets that are covered in the prenup should be disclosed. If you fail to include all assets and debts in the prenuptial agreement, it is very likely to be overturned. Therefore, to avoid spending your money and time on a prenup that will not be enforceable, ensure you provide full disclosure.