Domestic Contracts: When It’s Not Quite Over

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  • September 7, 2016

The wedding is in weeks and the marriage contract needs to be concluded.  A copy of the signed separation agreement identifying the size of your equalization payment is needed by the financing institution to qualify for the mortgage for your new home.

Whether you are negotiating a prenup agreement, marriage contract, or separation agreement, you come to a point where every term has been examined, drafted, haggled over, redrafted and settled. With each party having their own independent legal counsel to conclude negotiations, you are looking down the home stretch; or so you thought.

You say that you have already agreed on terms. And then the real negotiations begin.

  • What happens when one lawyer says that a term or terms require clarification to understand how it will function in different unforeseen circumstances?
  • How will you respond to a demand for further restrictive clauses against your interests?
  • Did you remember to include a specific timetable to give effect to a stepped change such as a decrease in the insurance policy coverage when the kids are older or reduced spousal support when the retraining program concludes?
  • How will you approach the redrafting of a term you understood to be resolved?
  • Are you still in negotiations or running to court with an emergency motion (for separation agreements)?

Until the agreement is executed by both parties and counsel have signed the Certificate of Independent Legal Advice, there is no deal. You may be able to rely on the exchange of emails between lawyers if the clause “without prejudice” isn’t marked on the emails to attempt to conclude matters.

A different option to deal with these unexpected interruptions is to understand the ‘why now’? If there is a new situation that wasn’t previously considered, take the time to reflect on its potential consequences. Insert an issue resolution provision to empower the parties to attempt to resolve any difficult issues down the road by themselves first.

Crystal ball gazing is an art encountered and managed by senior lawyers with years of experience. Even with all that experience, there are new scenarios deserving of analysis for the future benefit of the family.  If the new term or requested revision is against your interests ask for the rationale for the change. There may be an alternate solution with acceptable consequences.

Lorisa Stein is a senior family law lawyer located in Downtown Toronto who is highly experienced in helping clients draft prenuptial agreements, marriage contracts and separation agreements. For a private consultation, please fill out the confidential form located on the contact page or call (416) 596-8081.

Call Lorisa