Prenuptial Agreement Lawyers Edmonton

Prenuptial Agreements Lawyers

Planning for a marriage involves many important decisions, one of the most important considerations, although often overlooked, is regarding what occurs if a separation or divorce were to take place.

At Helm Family Law LLP, our family lawyers have experience negotiating, advising on, and drafting prenuptial agreements – whether they be straightforward prenuptial agreements or complex agreements involving business interests.

If you are considering entering into a prenuptial agreement, if your partner has suggested a prenuptial agreement, or if you need independent legal advice regarding a prenuptial agreement, schedule a consultation with one of our lawyers to learn your options and how to protect your interests.

What is a Prenuptial Agreement?

A prenuptial agreement is a legally enforceable contract entered into by two people before they marry. This document will typically set out the parties’ rights, entitlements, and obligations regarding assets, liabilities, and spousal support if the marriage were to breakdown.

Without a prenuptial agreement, property division for married couples in Alberta is governed by Alberta’s Family Property Act. By entering into a prenuptial agreement, the parties opt out of most of the legislation and instead opt to have the issue of property division governed by the prenuptial agreement in accordance with contract law.

Why Should I Consider a Prenuptial Agreement?

There are numerous benefits to entering into a prenuptial agreement prior to marriage, including:

Clarity: A well-crafted prenuptial agreement can provide clarity as to what will occur with property division and spousal support upon separation. This can lead to peace of mind in the case of a divorce as both parties will understand what they are entitled to upon separation.
Autonomy: Without a prenuptial agreement, property division and spousal support are generally determined by the Family Property Act and Divorce Act respectively meaning that these issues are determined by legislation. By entering into a prenuptial agreement, the parties are able to decide how they want these issues to be addressed based on what works for them and their family, rather than legislation created by people who do not know their family or their personal circumstances.
Protecting Premarital Assets: Assets that the spouses had when they began cohabiting will typically be exempt provided that they were kept in separate names. However, the increase in value of exempt property may be distributed at the discretion of the Court in the case of a divorce. A prenuptial agreement can protect the assets that the parties came into the relationship with by opting out of the Family Property Act and instead having the parties’ affairs governed through the law of contract with their prenuptial agreement.
Reducing Litigation: If the parties exchanged full financial disclosure and obtained independent legal advice prior to entering into the prenuptial agreement and if the agreement is well-crafted and clear as to what occurs after separation, this disincentivizes litigation upon separation as both parties will typically expect the terms of the prenuptial agreement to be enforced.
Estate Planning: A prenuptial agreement may be used to prevent a spouse from obtaining an entitlement to property which is intended to be left to another family member upon death such as your children.

How Much Does a Prenuptial Agreement Cost?

A prenuptial agreement will typically cost between $2,000 to $3,000 in legal fees. In some circumstances involving complex agreements the cost may be higher.

To obtain an accurate estimate as to the cost of your prenuptial agreement, it is best to consult with a lawyer so that they can better understand your circumstances, what your goals are, and how much time it will take to prepare your prenuptial agreement for you.

Some factors which effect the cost of a prenuptial agreement include:

Complexity: The more complex the prenuptial agreement, the more time it will take your lawyer to draft it for you and the higher the legal fees will be.
Financial Disclosure: If preparing your prenuptial agreement involves the review of a substantial amount of financial disclosure, this can lead to the cost to prepare the prenuptial agreement increasing.
Whether Negotiation is Required: If in addition to preparing the prenuptial agreement for you, your lawyer also must negotiate some or all of the terms of the prenuptial agreement, then this will increase the time required to prepare the prenuptial agreement and the legal fees.
Whether Revisions are Required: Prior to entering into a prenuptial agreement, both parties must receive independent legal advice regarding the terms of the agreement. This means that the form of the prenuptial agreement has to be agreed upon by both parties after having it reviewed by their lawyers. If there are revisions required to the structure of the prenuptial agreement, this can increase the cost of the prenuptial agreement.
The Experience of Your Lawyer: Lawyers with more experience charge more for their time. The cost of the prenuptial agreement is primarily based on how much time it will take your lawyer to prepare the agreement for you. It may cost more to have a more experienced lawyer prepare the agreement for you.

In some cases a lawyer may offer a flat rate for a prenuptial agreement, but it will typically be required for them to talk with you first so that they understand the particulars of your agreement.

How To Reduce the Cost of a Prenuptial Agreement?

The primary determinant of the cost of a prenuptial agreement is the time it will take your lawyer to prepare it for you. Anything that may reduce the time it takes for your lawyer to prepare the agreement may result in less legal fees being incurred.

Some ways to reduce legal fees for a prenuptial agreement include concisely summarizing in writing the terms that you want in the agreement and preparing and neatly organizing your and your partner’s financial disclosure for your lawyer to review.

The disclosure exchanged prior to entering a prenuptial agreement is typically those set out in the Notice to Disclose Desk Application form which can be found on the Alberta Courts website.

Can a Prenuptial Agreement Be Entered After Marriage?

A “prenuptial” agreement specifically refers to an agreement entered before marriage. If you are already married or are about to be married and do not have time to have a prenuptial agreement prepared, it is possible to enter into a postnuptial agreement instead.

Postnuptial agreements can address the same issues as prenuptial agreements, including related to property division and spousal support. There are some additional considerations regarding postnuptial agreements, including that the court may have a stronger expectation for detailed financial disclosure to be exchanged prior to entering a postnuptial agreement as certain legal entitlements may have already crystalized by that time.

If you are deciding between a prenuptial agreement and postnuptial agreement, you should talk to a lawyer to receive advice as to whether a prenuptial agreement or postnuptial agreement best protect your interests.

Can a Prenuptial Agreement Be Overturned?

A prenuptial agreement where both parties to the agreement obtained independent legal advice will in most cases be able to be upheld if challenged in court. There are some circumstances where it may be possible to challenge a prenuptial agreement, but these cases are fact-specific, complex, and extremely nuanced. If you are thinking about challenging a prenuptial agreement, you should discuss your case with a lawyer so your circumstances can be carefully considered.

Most prenuptial agreements will contain a solicitor and client cost clause, meaning that if a party were to unsuccessfully challenge the agreement, they may have to pay all the other parties’ legal fees. Prenuptial agreements are specifically designed to be difficult to challenge.

In our experience, the person looking to set aside a prenuptial agreement is usually the party who was economically disadvantaged relative to their partner at the time of marriage. Even if they do have an argument for setting aside the agreement, they may not have the resources to do so or cannot bear the risk of unsuccessfully challenging the agreement and having to pay the other parties’ legal fees.

When it comes to prenuptial agreements, an ounce of prevention is worth a pound of cure. If there are any issues with the prenuptial agreement, these should be addressed before it is signed.

Prenuptial Agreement Lawyers Edmonton

At Helm Family Law LLP, our family lawyers have experience negotiating, advising on, and drafting prenuptial agreements – whether they be straightforward prenuptial agreements or complex agreements involving business interests.