Separation, cohabitation and marriage agreements

You are moving in together, getting married, or separating, and you want the terms written down. A cohabitation agreement and a marriage agreement do the same work at the start of a relationship: they decide in advance what happens to property, debt and support if it ends. A separation agreement does that work at the end. All three are governed by the same rules about disclosure, advice, and fairness.

1. 01Start with what you are trying to protect or settle, and be direct about whether an agreement is the right instrument. Some concerns are better addressed by how property is held, by a will, or by a trust.
2. 02Explain what the Family Law Act does if you write nothing. An agreement is worth making where you want a different result from the default, or where you want certainty about a default that is otherwise arguable.
3. 03Run financial disclosure properly on both sides and record what was exchanged, because the record of disclosure is what defends the agreement later.
4. 04Draft the terms that are hardest to get right and most often litigated: how property brought into the relationship is traced and kept separate, what happens to the family home, how growth in value is treated, and whether spousal support can be reviewed and on what trigger.
5. 05Deal with child support and parenting on the understanding that these terms are treated differently. What the parents agreed about a child is measured against the child's interests and the Federal Child Support Guidelines, not simply enforced because it was signed.
6. 06Build in what happens when circumstances change, because they will. Incomes move, children's needs move, someone relocates. An agreement that anticipates that is worth more than one that assumes stability.
7. 07Arrange independent legal advice for each of you before signing, and keep the certificates and the disclosure with the agreement rather than filed loosely.
8. 08Sign and witness it in the form the Act requires, file it where filing makes support and parenting terms enforceable, and tell you where to keep the original.

• Two pieces of government-issued identificationOne has to carry your photograph.
• Complete financial disclosure from both of you, with documentsNot a summary and not a figure from memory. Failure to disclose significant property or debt is the most common ground on which an agreement is set aside, and the person who did disclose properly is the one protected by the record.
• What each of you owned and owed when the relationship beganProperty brought into the relationship can be excluded from division, but only if it can be traced. Statements from the beginning of the relationship are the hardest documents to find later and the most valuable to have now.
• Property, mortgage and pension documentsPensions are frequently the largest asset after the home, they are divided under their own part of the Act, and division goes through the plan administrator's own process and forms. An agreement that ignores the pension is only half an agreement.
• Details of any children, and the arrangement you follow nowNames, dates of birth, the schedule as it actually runs, and each parent's income. Terms about children are assessed against the child's interests and the Guidelines, so they have to be built on what is real rather than what is convenient.
• Any existing agreement, order, or willAn earlier cohabitation agreement, an order from another jurisdiction, or a will that assumes something the new agreement will change. These have to be read together, and sometimes one of them has to be redone.
• The name of the other person's lawyer, if they have oneEach of you needs your own advice for this to hold. If the other person does not have a lawyer yet, that is the first thing to solve, because an agreement signed without independent advice is materially easier to attack.