Many people assume that agreements between intimate partners are only done before, but not after marriage or cohabitation occurs. Not so. Couples are free to enter into contracts at any time. These contracts are often referred to as pre-nuptial agreements, post-nuptial agreements, or interspousal contracts. The question is, when do you need one?
Relationship breakdowns are usually as a result of unmet expectations. Rarely are those expectations clearly set out in an agreement in advance of the relationship or even afterwards, as they could and should be.
There is no reason why potentially unhappy couples could not renegotiate their relationship with a view to making things work. Renegotiating the relationship could be more constructive to saving the relationship than talking to each other to death about their unhappiness.
I am reminded of the lawyer who renegotiated his own relationship. He came home from work one day after 10 years of marriage and was told by his wife that she wanted a divorce. When asked why, her main complaint was that her husband ate, drank, and slept the law, and that her husband had become a one dimensional person. So, she wanted out. The lawyer asked her if she would renegotiate and she agreed.
They made an agreement on all the issues. Because he loved his wife and children more than he loved the law, he quit as a lawyer and opened a bicycle repair shop — and they saved their marriage.
Historically, relationships were about the practicalities of earning a living than about romance. Society clearly defined responsibilities and expectations for each partner, which was imposed by traditions, customs, and social norms. In recent years, these defined roles have been altered to the point that partners’ roles are now pretty much undefined in our modern society.
So, what is wrong with sitting down, talking about expectations, and then writing down those expectations in a carefully thought out agreement?
Expectations should be negotiated within a framework and context of the law to make sure that both parties are treated fairly and that their agreement will be enforceable, as not all agreements parties’ make are fair or enforceable at law.
An agreement should rather be reduced to writing to give it structure and certainty. Posing all the right questions, explaining the framework of the law, and documenting those expectations is where a good divorce lawyer may actually save your marriage and avoid a messy and expensive contest with you new prospective partner.
An experienced lawyer can ensure you at least think about the issues that should be addressed. Some topics for discussion include:
- spousal support both during the relationship, and in the event of relationship breakdown, financial responsibility for kids brought into the relationship,
- division of debt as well as assets,
- surnames to be used,
- domestic and financial responsibilities,
- duty to be employed, or not,
- right to make unilateral purchases,
- the right to incur debt with or without consultation,
- and attendances at the other partner’s family activities.
And, yes, lawyers will charge money for guiding you through this process and drafting an agreement, just like any other professional might charge for fixing your teeth, doing your books, or changing the tires on your quad cab. The question is whether it is worth it. And, without independent legal advice, your agreement will not likely be enforceable anyways.
Robert G. Bissett