Rioe
Well-known member
Maybe you could do a search on CanLII - Canadian Legal Information Institute? It couldn't hurt to find and use wording that has already held up in court.
Prenup advice
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mcdreamy
Moderator
Unfortunately it seems like a lot of people here think a prenup is not worth much. I realize there is some selection bias on a divorce site and most people didn't get one, but still... one or two positive anecdotes of a prenup being upheld wouldn't hurt.
There are ways to ensure a prenup can't be challenged, or if challenged, minimize your losses:
1. don't marry crazy. As PH has said, you need to know the person you intend to spend the rest of your life with, you need to (early on) have discussions about finances, and fully disclose where each of you are.
2. Early discussions about beliefs re: cs, ss, employment, sahm, sahd, child rearing, etc... that all needs to happen long before a wedding date is chosen. Before sex, as well --this is 3rd date material.
3. as Mess has said, try your best to meet/cohabit with someone of equal educational background/financial strength.
4. the majority of prenup/cohabs fail on "duress". Don't pick a wedding/buy a house date, and then go to a lawyer. Go to a lawyer, give both of you time to review and discuss.. and then pick the wedding date/shop for houses.
5. be aware that if you chose a partner of lesser financial strength, it might be wise at the beginning to include in the cohab an offer of a lump sum payout if the relationship fails within a certain time period.
6. full financial disclosure prior to signing cohab - I'm not talking listing assets/debts, I'd want to see completed and sworn financial statements, attached as an exhibit.
7. if kids are coming, be an equal parent. Don't be the provider, working all day, while one parent stays at home. Each of you must be providers, both in care and financially. I was back in the office 3 weeks after our kidlet was born (ok, I am not sahm material, that was never going to happen). There are nannies out there.
8. Although you say you are prepared to lose the existing equity in your current house, there is no need to, if dealt within the cohab.
9. Don't marry crazy. Did I say that already? I read many posts on this site, and I just shake my head - either at the poster, or at their ex, or with both. My ex and I have managed to come through fairly cleanly, because of who we are. We can communicate, we can negotiate. Sometimes you need to personally own your decisions and your choice of mate, and you can't expect the system to back up or save you from your own personal poor choices.
Here's a case re: "duress" where her claim failed. There are others on Canlii where the claim fails, but there are also many more where the claim is successful, and ss/equity payouts made. You need to understand the definition of duress, and how to avoid it. And remember, most cases posted on Canlii are from cases where one of them is crazy:
Citation: Orcheski v. Hynes, 2007 ABQB 194
http://www.canlii.org/eliisa/highlight.do?text=cohabitation+agreement+spousal+support&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ab/abqb/doc/2007/2007abqb194/2007abqb194.html&searchUrlHash=AAAAAQAmY29oYWJpdGF0aW9uIGFncmVlbWVudCBzcG91c2FsIHN1cHBvcnQAAAAAAAAB
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EXCELLENT advice!
It has been 5 years for me, and I haven't been able to even go on a date yet!
But it wasn't the separation and aftermath that was hell, it was the "marriage."
If I could offer one thing: if you feel any doubt, any teeny, tiny speck of doubt about this person.... THEN I say don't do it.
If you feel totally, madly, passionately in love and have not one shred of doubt about her, then I say do it. You can't deny yourself the chance of life-long love because we've all been burned. Seriously. Happiness comes to half of us. Why not you?
Great advice on this thread, and Rioe really nailed a lot it. Pre-marital counselling can help. Online research and reading books on marriage, finance, raising kids, etc. can also help. But in the end it has so much to do with the individuals' commitments to each other to want this relationship to work.
Having a happy and long-lasting marriage is work, but it's good and worthwhile work. I believe in a passionate, loving and lasting relationship. I've also been through a special kind of hell in the marriage, and also in the separation/divorce process, but can truthfully say that in over 1.5 years post-separation, I have not even had one nano-second of regret in leaving the marriage.
It takes dedication and understanding of each other, to truly know yourself. Then you will begin to know your partner.
Having a happy and long-lasting marriage is work, but it's good and worthwhile work. I believe in a passionate, loving and lasting relationship. I've also been through a special kind of hell in the marriage, and also in the separation/divorce process, but can truthfully say that in over 1.5 years post-separation, I have not even had one nano-second of regret in leaving the marriage.
It takes dedication and understanding of each other, to truly know yourself. Then you will begin to know your partner.
A prenup can be valid so long as it is not unconscionable and unreasonable. Meaning, you can agree to damn near anything, so long as one side is not unreasonably disadvantaged.
If you had $10mill in assets and got married. Your spouse stays at home and raises the kids for 20 years and then you get divorced. Your spouse has no other assets or ability to live an equivilent lifestyle. The odds of that prenup being set aside are pretty much 100%.
However, if you each come into the marriage with similar assets/savings (or if one is high, but the other spouse has something to fall back on) and each earn an income and would, if divorced the difference in lifestyle would not be unconscionable, then the odds of that prenup being enforced are good.
It isn't a matter of simply not getting married. You just shouldn't get married to someone who has significantly less assets and earning potential than you. If you marry someone even with 1/2 your earning potential and has some savings/assets, you should be fine. But if you marry someone who has never made more than min-wage and you are earning $80k or whatever, you're gonna get hit with SS. Especially if they stay at home with the kids or otherwise damage their earning potential for the benefit of the household.
If you had $10mill in assets and got married. Your spouse stays at home and raises the kids for 20 years and then you get divorced. Your spouse has no other assets or ability to live an equivilent lifestyle. The odds of that prenup being set aside are pretty much 100%.
However, if you each come into the marriage with similar assets/savings (or if one is high, but the other spouse has something to fall back on) and each earn an income and would, if divorced the difference in lifestyle would not be unconscionable, then the odds of that prenup being enforced are good.
It isn't a matter of simply not getting married. You just shouldn't get married to someone who has significantly less assets and earning potential than you. If you marry someone even with 1/2 your earning potential and has some savings/assets, you should be fine. But if you marry someone who has never made more than min-wage and you are earning $80k or whatever, you're gonna get hit with SS. Especially if they stay at home with the kids or otherwise damage their earning potential for the benefit of the household.
shellshocked22
New member
I completely concur with the various posters above in that basically, other than NOT getting married or common law (really the only way to ensure you won't be attacked financially by an ex partner) the next best form of protection is to ensure you make sure any potential partner earns roughly the same as you.
Just interesting to think that essentially what the government has (inadvertently ?) encouraged is that the rich get richer and the poor get poorer. That is, such a trend will ensure that high earning persons will only pair with other high earners and those with low income potential will be stuck with other low wage earners.
Whereas in the past, I suspect that when selecting a potential partner, one didn't place a high as priority as reviewing their income statement, so a high wage earner who paired with an average/lower wage earner would still result in a very comfortable household income, now we're going to see households incredibly well off (two people earning $100K plus) OR those households struggling to make ends meet ( 2 people earning min wage).
Is that really "desirable" in the big picture socially and economically ?
Personally, I feel its sad that due to govt meddling in my life, I now have to avoid any potential partner who earns less than I do if I want to make sure I won't be living on welfare level income for the rest of my life !
Just interesting to think that essentially what the government has (inadvertently ?) encouraged is that the rich get richer and the poor get poorer. That is, such a trend will ensure that high earning persons will only pair with other high earners and those with low income potential will be stuck with other low wage earners.
Whereas in the past, I suspect that when selecting a potential partner, one didn't place a high as priority as reviewing their income statement, so a high wage earner who paired with an average/lower wage earner would still result in a very comfortable household income, now we're going to see households incredibly well off (two people earning $100K plus) OR those households struggling to make ends meet ( 2 people earning min wage).
Is that really "desirable" in the big picture socially and economically ?
Personally, I feel its sad that due to govt meddling in my life, I now have to avoid any potential partner who earns less than I do if I want to make sure I won't be living on welfare level income for the rest of my life !
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Pursuinghappiness
New member
Just to add, I think a lot of people are afraid to have these discussions with their partner.
Frank discussions about expectations...really opening up about money, what assets you have...and what kind of family you want. I think a lot of people feel like it would be revealing too much...or scare someone off. Its certainly not something I even was mature enough to consider doing when I got married.
But in my new relationship, we discuss these things often. My partner clearly told me that he didn't want any more children on our first date. And I've not only told him my entire financial background...but although I'm fiercely independent and don't want his financial help...he's a whiz with money and gives me great advice on how to manage the mess I've had through my divorce.
We have very frank discussions on relationship expectations...specifically regarding things we can both tolerate and things we both won't/can't. And since we've been discussing marriage...I told him I'd be absolutely fine with signing a pre-nup since he has far more assets to lose in a 2nd divorce than I would. He vehemently told me that he wouldn't ask me to do that...but I would. In the event of marriage, I plan to ensure we do full financial statements going in.
My point is that, you'd think that talking about such realities would be tough and kind of cold but actually they bring a couple far closer together. There is simply nothing more intimate than discussing money and future financial expectations. You establish trust by understanding what your partner expects from you and you can let them know what you expect in return.
Discussions about child rearing and household duties can avoid a lot of misunderstanding and resentment. Even though we don't live together, we have established duties already when we're in each other's households.
I would strongly suggest to the OP that he reads the divorce act with his partner. Then spend some time filling out financial statements together and talking about how duties will be split in the household. Also expectations about how you're going to manage the children.
Of course, things may change slightly...but at least, you've laid out what you expect before marriage...so no one is under any illusions as to what the other person wants. It will bring you and your partner a lot closer together and really illuminate to both of you exactly how serious the commitment you're making is.
I wish I had done these things before my first marriage. It would have opened my eyes to lot of potential deal-breakers.
Frank discussions about expectations...really opening up about money, what assets you have...and what kind of family you want. I think a lot of people feel like it would be revealing too much...or scare someone off. Its certainly not something I even was mature enough to consider doing when I got married.
But in my new relationship, we discuss these things often. My partner clearly told me that he didn't want any more children on our first date. And I've not only told him my entire financial background...but although I'm fiercely independent and don't want his financial help...he's a whiz with money and gives me great advice on how to manage the mess I've had through my divorce.
We have very frank discussions on relationship expectations...specifically regarding things we can both tolerate and things we both won't/can't. And since we've been discussing marriage...I told him I'd be absolutely fine with signing a pre-nup since he has far more assets to lose in a 2nd divorce than I would. He vehemently told me that he wouldn't ask me to do that...but I would. In the event of marriage, I plan to ensure we do full financial statements going in.
My point is that, you'd think that talking about such realities would be tough and kind of cold but actually they bring a couple far closer together. There is simply nothing more intimate than discussing money and future financial expectations. You establish trust by understanding what your partner expects from you and you can let them know what you expect in return.
Discussions about child rearing and household duties can avoid a lot of misunderstanding and resentment. Even though we don't live together, we have established duties already when we're in each other's households.
I would strongly suggest to the OP that he reads the divorce act with his partner. Then spend some time filling out financial statements together and talking about how duties will be split in the household. Also expectations about how you're going to manage the children.
Of course, things may change slightly...but at least, you've laid out what you expect before marriage...so no one is under any illusions as to what the other person wants. It will bring you and your partner a lot closer together and really illuminate to both of you exactly how serious the commitment you're making is.
I wish I had done these things before my first marriage. It would have opened my eyes to lot of potential deal-breakers.
Wow.....
Notes to self based on the above.....
a.) Don't get married (highly recommended and agreed on by most)
b.) Date the person for years, live with them for years, and continue living withthem for years
c.) No joint account at all
d.) Talk about financials (disclose them using form 13.1), child-rearing, household duties, SS/CS in the case of unforeseen circumstances
e.) If you are earning close to 100k, find someone earning close to that or more. Stay away from the minimum wage earners
f.) Sign a prenup / cohabit agreement
g.) Remember 1 in every 2 marriages fail, not worth it if you've been there once
h.) Don't get married, don't get married, don't get married
i.) A companion is just as good...find a like-minded person
Notes to self based on the above.....
a.) Don't get married (highly recommended and agreed on by most)
b.) Date the person for years, live with them for years, and continue living withthem for years
c.) No joint account at all
d.) Talk about financials (disclose them using form 13.1), child-rearing, household duties, SS/CS in the case of unforeseen circumstances
e.) If you are earning close to 100k, find someone earning close to that or more. Stay away from the minimum wage earners
f.) Sign a prenup / cohabit agreement
g.) Remember 1 in every 2 marriages fail, not worth it if you've been there once
h.) Don't get married, don't get married, don't get married
i.) A companion is just as good...find a like-minded person
Janus
New member
Unfortunately it seems like a lot of people here think a prenup is not worth much. I realize there is some selection bias on a divorce site and most people didn't get one, but still... one or two positive anecdotes of a prenup being upheld wouldn't hurt.
You are not quite correct in the above statement.
When we say "marriage sucks, don't do it", then you can certainly argue that there is a sample bias that can meaningfully affect results. That is because it is our opinion, coloured by our experiences.
However, when we say "prenups don't work", there is no sample bias. The vast majority of us never had a prenup. when I say a prenup doesn't work, it is because I have read the cases where prenups were challenged, and generally speaking the prenups have not held up in court.
In other words, the sample for saying that prenups are worthless is not "prenups of people who frequent this forum", but rather "prenups that have been tested in court", which is a very valid sample that is pretty much free from bias.
Rioe
Well-known member
This discussion highlights the changes in society and marriage that family law has NOT kept pace with. Historically, marriage was a partnership between an income earner (the man) who worked outside the home and a zero-income earner (the woman) who kept the home and raised the children. A big life goal of men was to find a woman to look after him and their offspring, and a big life goal of women was to find a man to support them financially. The power and control roles were not equal either. In the event of difficulties in the marriage, people mostly worked through it or endured silently instead of breaking up, but if there was a divorce, the man was expected to continue to work and financially support the woman, who was expected to continue to raise the children and not work.
Now, society is quite different. Both men and women usually want careers and both usually participate in the housework and childcare. Now, the power and control is more equal, and most people want a true partnership in all roles of the marriage. And in the event of difficulties, people break up.
Unfortunately, the institution of marriage and family law are still based on the first model, and on top of that, they are no fault. And we still have enough marriages that are more 'traditional' to keep the laws alive. So in the event of separation, the higher income earner is expected to continue to support the lower income earner, no matter what the reason for the breakup, even if it is was obviously due to the actions of the lower-income spouse. When you think about it, marriage comes with an automatic prenup, the family law system, of which few young people are truly aware, and would not agree to if they were. A big problem with family law is thus the fighting that occurs when people break up and suddenly become aware of what they signed when they got married. Then there’s also the dreaded status quo, that because you let something go on for years or were unaware of it, you are considered to have agreed to it.
Someone should make a default 'prenup' out of family law and provide it to all young people upon their engagement and make sure they understand what they are getting into.
Now, society is quite different. Both men and women usually want careers and both usually participate in the housework and childcare. Now, the power and control is more equal, and most people want a true partnership in all roles of the marriage. And in the event of difficulties, people break up.
Unfortunately, the institution of marriage and family law are still based on the first model, and on top of that, they are no fault. And we still have enough marriages that are more 'traditional' to keep the laws alive. So in the event of separation, the higher income earner is expected to continue to support the lower income earner, no matter what the reason for the breakup, even if it is was obviously due to the actions of the lower-income spouse. When you think about it, marriage comes with an automatic prenup, the family law system, of which few young people are truly aware, and would not agree to if they were. A big problem with family law is thus the fighting that occurs when people break up and suddenly become aware of what they signed when they got married. Then there’s also the dreaded status quo, that because you let something go on for years or were unaware of it, you are considered to have agreed to it.
Someone should make a default 'prenup' out of family law and provide it to all young people upon their engagement and make sure they understand what they are getting into.
I think that is an excellent idea.
There are enough people around who have signed their separation/divorce agreements. Why not just give the to-be-wed a dose of this very practical advice and let them read your copy?
Give them a copy erasing names and any other identifying information if you wish. Inform them of the legal ramifications of what can and will happen if they ever do decide to part ways.
Also most young couple now get sick of the same person so quickly, and start sleeping around the office, guys /girls only trips to Vegas, neighbours et al
There is no longer that will to sit down and talk matters over, it is perceived as "giving in", then there is the outsdie interference from "friends" i.e you can do better, you shouldn't take that blah blah
I look forward to that sticky....
Not that I have any intentions of getting married again...ever. I do however know a couple of people that can benefit from it
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