Domestic Contracts – Signing, Enforcing And Changing Them (Part 3 of 3)

In parts one and two of this series, we looked at different types of domestic contracts and what they typically include. This week, we close the series with a brief discussion steps the involved parties should take before finalizing the document and later, if situations change and the terms require adjusting.

The Wisdom Of Seeking Independent Legal Advice

Before signing a domestic contract, both parties are wise to involve a lawyer – but not together as a couple.

Each signee should retain his or her own lawyer – especially so if a lawyer drafted the document on behalf of one party. Since a lawyer represents only one side in an agreement, the other spouse should seek a separate, unbiased opinion from another lawyer.

Seeking independent legal advice helps a signee:

  • Understand what the agreement contains
  • Be aware of how the terms differ from default provisions normally applied under the law
  • Identify any rights one party may be voluntarily agreeing to give up
  • Determine if the other spouse has properly disclosed information needed to properly assess the contractual terms

Officially Filing The Document

After signing a domestic contract, it’s best to file it with the court. Doing so gives it the same force of a court order. The court doesn’t review the document at the time of filing, but if problems arise later, the document will be officially on record and available for review, enforcement or possible variation.

Altering A Domestic Contract

If circumstances change and both parties agree to change the terms of an already-signed domestic contract, they can do so by adding an amendment or drafting a new agreement – being sure to follow the usual formalities to make it legally valid. But if one party wants a change and the other disagrees, he or she must apply to the court.

In most cases, courts don’t interfere with valid domestic contracts. Having agreed and signed to the terms – even if less optimal than typical legislated entitlements – the parties are legally bound. A judge will usually only set aside all or part of a contract in cases where one party was pressured to sign, the other failed to provide proper factual disclosure or the terms are extremely unfair.

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