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Negotiations and Agreeents

Separation Vs Divorce - What Kind of Agreement do I Need?

In the eyes of the law if you didn't get formally married then you can't get a divorce. So what is the difference between divorce and separation? Many aspects are the same but one major difference is that in marriage you need a court order to get divorced, while in a common law partnership you can choose to separate by agreement. If you are in a common law partnership and choose to separate by agreement you and your partner will get to decide how the property should be divided, how support should be handled and, if you have kids, how guardianship and parenting time will be determined.

Can common law partners get a prenuptial agreement?

If you are in a common law relationship the equivalent to a prenuptial agreement is a cohabitation agreement. A cohabitation agreement allows you to set the terms of your separation with your partner in advance. It allows you and your partner to decide how the property and assets will be divided, how financial support should be determined and how to resolve disputes should they arise. Although you can set many terms of separation in a cohabitation agreement, you cannot include terms for handling parenting time and child support. Such terms can only be discussed at the time of separation. If you think a cohabitation agreement might be right for you and your partner come and speak with us. We'll put your needs and goals first and make sure you get an agreement that reflects the unique needs and goals of you and your partner.

The Value of Agreements in Common Law

The ambiguity associated with being in a common law relationship may make you wonder if there is much point in having an agreement in the first place. In fact you may find that this ambiguity make having a cohabitation agreement all the more important. This ambiguity we are talking about refers to the term "marriage-like" a key component in determining whether or not a couple is considered common law. A couple is considered to be common law if they live in a marriage-like relationship for at least two years. So what constitutes marriage like? Unfortunately there isn't a clear definition for "marriage-like" which allows for flexibility in determining if the relationship qualifies as common law or not. You may find the flexibility beneficial but without any agreement in place the flexibility often leads to confusion resulting in lengthy legal battles over assets. So while the rules are similar for divorce and common law the difference lies in the clarity of marriage vs the ambiguity of common law.

The Value of a Prenuptial Agreement

However, one of the rules of common law that does differ from marriage is the rights of the partners vs spouses. In a divorce all assets are considered part of the marital estate and are divided equally while in common law assets bought into the relationship by either party at the start of the relationship are generally returned to each party when they split up. So a common law partner doesn't automatically have the rights to half of the assets like a married spouse does. So this in turn highlights the value of protection a prenuptial agreement can have to protect certain assets you might be bringing into a marriage.

Whether you are just entering into a relationship, marriage or common law, or you are thinking you might be at the end of your relationship come and speak with us. We will ensure you get the right kind of agreement and make sure it not only fair but meets your needs as well.

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