Prenuptial Agreement Lawyer Toronto
We help clients protect their net worth in divorce
with Prenup agreements.
What is Prenup Agreement?A Prenup helps to protect assets (and even debts) in the event of divorce or death. You can identify certain assets – such as properties, investments accounts, pensions, RRSPs, that will not be included in the division of property if you divorce. Not only do you exclude the value of these assets now but any growth in the assets over the course of the relationship. You can also protect family inheritances. A reasonable Prenup provides clarity to the couple so they know exactly what happens to their property in the event of divorce. They are saved from the anxiety of the unknown, in the event of breakup. If a couple does not have a Prenup, property is divided as the law is at the time of breakup. Most people assume that property is divided equally but that is not necessarily the case. Most people don’t understand how property division works and they are shocked to learn how unfair it can be. A Prenup can fix this unfairness, and it’s advised to have a prenup lawyer Toronto to help you with this
What Should Be Included in a Prenup?
A prenup doesn’t have to be confusing, rather fair and reasonable. Below you will find the answer to the ‘what is reasonable prenup’ question and what is recommended to include in Prenup Toronto.
- Any property that you own and do not want to be divided on break up. Property means homes, investment accounts, bank accounts, RRSPs, pensions, stocks, stock options, cryptocurrency, business interests or collections such as art.
- Debts – if you or your spouse have significant debt it can be excluded from equalization. You can also put in provisions if one person pays off the other person’s debt to have the amount credited.
- If you have children from a prior relationship, you may want to protect your children’s interests in the event that the parent passes on. Parents may want to leave separate property to their children.
- Some couples also address spousal support in a Prenup. If support will be paid, how much will be paid and for what time period.
- The couple is free to include for the most part, whatever they would like in the Prenup. It just needs to be a fair agreement at the end of the day.
What Should Not be Included in a Prenup?
- Anything related to the kids. You cannot include in a Prenup anything about parenting decision making or parenting time. You cannot negotiate child support – either waive it or dictate how much support should be paid. The law will apply.
- A provision kicking your spouse out of the family home. Married people have an equal right to live in the home – regardless of who is on title.
- Cheating clauses. Sometimes a couple will want a penalty clause for cheating in the Prenup. These clauses will not be enforced by a judge.
- Terms that may incentivize divorce. Courts do not want to encourage divorce.
- Terms that are unconscionable or so unfair and one sided, that no reasonable person would sign the agreement.
Do I Need a Lawyer for a Prenup?
Can you write your own prenuptial agreement? Yes, legally you do not need a lawyer for a Prenup, but you run a high risk that the agreement will be overturned if you did not have an opportunity to obtain legal advice.
If the Prenup doesn’t comply with the law, it will not be valid. Having a prenuptial agreement Lawyer Toronto ensure your “I’s” are dotted is worth a lot to ensuring the agreement will hold up.
Investing in legal fees up front, can be worth it in the long run because you ensure your assets and net worth are properly protected. Imagine how it would feel to think you have a proper Prenup in place only to learn it is set aside on a technicality.
Frequently Asked Questions
A marriage contract is an agreement that a couple makes when they are planning to marry, about what happens to their assets and debts if the breakup. They may also address if and how much will be paid in spousal support (alimony) from one person to the other.
A cohabitation agreement is an agreement that a couple makes who are not married but who want to live together, outlining what happens to their assets and debts, if they break up. They also may address spousal support (alimony) in the agreement.
The sooner the better. Timing is everything. The sooner you bring this up with your partner, the better it is. If you are 3 months or less away from your wedding day, we recommend you sign the prenup after the wedding. Yes – that is a real thing that a lot of couples do so they aren’t rushed leading up to the wedding.
You also want your partner to take time to process the idea of a prenup if he/she wasn’t expecting it.
You need to time talk about the terms of the agreement – we give you an idea of things you need to decide, you still ultimately need to be the decision maker.
You need time to put together your net worth statement and collect your financials –your bank statements or mortgage statements.
You also need time so your lawyer can draft the agreement and explain it to you so you understand exactly what you are signing.
A postnup is the exact same thing as a prenup – it is just signed after the wedding. It lays out the terms of what happens if the couple separates. It includes how your assets and property will be divided, how spousal support will be paid, if spousal support will be paid. These agreements do not include terms about parenting time, decision making or child support.
If you are married, your home is considered a matrimonial home. This means that each person, regardless of who is on title or what a prenup says, has the right to live there. Basically you can’t kick your spouse out of the family home because you have a prenup. However, the prenup can deal with who keeps the home on break up. How the home proceeds are to be divided can be especially important as one person may have contributed more than the other. Without a prenup the law does not give a credit to the person who purchased or contributed to the matrimonial home. This is why it is so important that the couple get a prenup or a postnup, especially if one person contributed more or brought the property into the relationship.
Anyone who plans to get married or live with a partner should get a prenup. They don’t just protect the ultra wealthy anymore. If you have income or assets, you need to consider this. A big misconception is that a prenup will result in one person being protected in terms of their assets and the other person being left destitute. That is not the case. Agreements actually provide security so you know exactly what happens if you break up. The agreement also has to be fair. An agreement that is completely one sided would never stand up to scrutiny by a judge and will be easily overturned.
Be honest. Talk about why YOU want the prenup. It is not about the other person or that you don’t trust the other person but reasons you want it. Some clients have wanted a prenup to protect an inheritance from a grandmother or to preserve a family cottage that has been in the family for hundreds of years. Losing half the interest in either asset could be emotionally devastating. Other clients want to ensure that they are protected in the event of separation. They may be moving cities to be with the one they love. They need some certainty that if they break up that they will be taken care of. At the end of the day, the couples who are honest and open about their finances have the best success rate and have more fulfilling relationships. Adding a discussion about prenups to your discussions about finances is just another item on the financial checklist.
A prenup will be enforced unless it is challenged. Like any contract, a prenup can be challenged but it is very difficult to do. There is a big risk to a person who challenges a properly prepared prenup. An agreement that follows the law, there has been full and honest financial disclosure and there has been independent legal advice will stand up well to scrutiny. If the person who challenges the agreement does so and is not successful, he or she will be responsible to the other side for costs which can be significant and even upwards of $50,000. So any frivolous or challenge without merit will be costly to that person. An agreement that is upheld can be filed with the Court and can be treated as if it is a court order.
In general, if any of the following apply, the contract may be set aside:
- If one person was under duress or pressure to sign the agreement;
- If the agreement is unconscionable (very unfair); or
- If there was fraud or misrepresentation (failed to disclose a large asset).
If you think the agreement should be set aside, you need to apply to the Court. The judge may not throw out the entire agreement but may only throw out a certain term.
A lot of people think that they can say they were under pressure when they signed and they didn’t understand the agreement and that will be enough for a judge to set aside the agreement. Not so. The test is quite high – was there no realistic alternative but to submit to the pressure? The agreement usually has to be completely unfavourable and one sided. A changed mind after the fact is not enough. There must be evidence that one person attempted to dominate the will of the other when the agreement was executed and there must be credible evidence of the intimidation or illegitimate pressure.
You also have 2 years from the date the party finds the contract is unfair to start a legal proceeding. There is a time limitation to challenge an agreement.
If the asset is being covered by the agreement, then yes. Our practice is to do a complete net worth statement and to include all assets and debts of both people so the agreement will not be overturned. It is not worth your time, energy and costs to prepare an agreement where there is financial information missing or there is information you want to hide. The agreement can be overturned if that information was material and it was not disclosed. How the law sees it is that you can’t sign away your right to something that you don’t know exists or you don’t know the value. If you don’t disclose the asset you don’t get protection under the law and you may lose the protection you have for the other assets. It’s simply not worth it.
The decision to enter into a prenuptial agreement is very personal and requires buy in for both parties in a relationship.
Reasons a Prenuptial Agreement Might be Invalid
Prenups have to be properly drafted in order to be valid to avoid the stress and expense of fighting over money in a break up.
Prenuptial Agreement Benefits and Drawbacks
There are many benefits to signing a prenuptial agreement, especially if you and your partner have significant assets.
Can Your Prenuptial Agreement Be Modified after Your Marriage?
A prenumptial agreement may be modified after you’re married depending on the local law and the specific terms of your agreement.