Cohabitation Agreement - Lawyers Disagree. I am confused by it all.
November 5, 2014 11:11 AM   Subscribe

I know you are not my lawyer and this is not legal advice. I have a lawyer and my partner has a lawyer, but I am still rather confused. We are working on a cohabitation agreement and there is one outstanding issue that is seems to be holding us up -- the lawyers don't agree. I need a) help understanding the issue b) phrasing the question to my lawyer.

My lawyer — we’ll call them Pine — has advised me that the agreement does not include a waiver of spousal support— meaning that the contract preserves the rights for either of us to sue for spousal support if we break up.

My lawyer says that since I make more money (about 30K) that I’d be at risk of having to pay support if we break up. (I think this is moot as our salaries are not that far apart — and we both make good salaries in the grand scheme of things. We are both fully self-supporting now). Plus, we are both honestly not worried that such a claim would ever be pursued by either of us…we are both young and healthy.

My partner is also fine with adding a waiver of spousal support except for the fact that it could make the whole agreement invalid. And the important part of the agreement — preserving the sole ownership of my partner’s house should we break up — must be ironclad.

You see, the other lawyer — we’ll call them Walnut — says it’s best to leave it in only because taking it out undermines the credibility of the agreement. Without including it we are making the cohabitation less valid and easier to be challenged.

Pine told me that this is not true – that waiving support does not make it less credible at all – that in our province, the Family Law Act specifically provides that a cohabitation agreement may include provisions for support obligations.

I have told Pine I am not concerned, but Pine says it’s a serious issue for me and very strongly thinks it must be in there. Walnut says it must not be there or the agreement is not credible.

How it is that something that must be pretty common thing in these types of agreements is open to such different interpretations? What does this all mean?

I want to get this done and just sign it – but Pine says we really need to talk about this before we do.
  1. What do I need to ask Pine to fully understand the issue? I don’t know if Pine is right or if Walnut is right. I would like to read up on the issue to form my own opinion, but I can’t find any info online about this that I can understand.
  2. Is this a situation where I need to get another lawyer’s opinion?
posted by Lescha to Law & Government (18 answers total) 2 users marked this as a favorite
 
IANAL, and when lawyers disagree, that generally means more lawyers....

EULAs typically include language to the effect that if any clauses are invalidated, that this does not invalidate the rest of the agreement. Can you add something of the sort to this agreement?
posted by Wilbefort at 11:23 AM on November 5, 2014


I am not going to offer you legal advice on your particular situation, but let me explain in broad strokes how the attorney/client relationship usually works. You have YOUR lawyer, Pine, who represents YOUR interests, and they have THEIR lawyer, Walnut, who represents THEIR interests. The reason they are two different people is in case those interests differ. I understand that, as a couple considering cohabitation, you would prefer to think that everything is hunky-dorey and you will come to an easy consensus on everything, but having two separate lawyers is a cautionary measure in case it doesn't quite work out that way - then everyone can get their own personalized advice from their own paid counsel.

If the two attorneys are disagreeing, it appears that you have reached such a situation - you and your partner's interests differ, however important or unimportant this issue ultimately ends up being. In light of the fact that you hired Pine specifically to represent YOU in such an event, I don't understand why you would even consider taking Walnut's word for it over Pine's. Walnut is not (necessarily) acting in your interest. If you don't trust Pine to advise you properly here, why did you hire him/her?

Now, you can decide not to act on Pine's advice if, as you imply, it is more important to you to just get it over with, but that is not the same as taking Walnut's word for the correct move here. I want to urge you to ask Pine to explain his/her reasoning to you so that you fully understand your options. As for "what questions" to ask, I guess start by asking him/her to explain the reasoning step by step why Pine's opinion is right and Walnut's is wrong, including discussion of the relevant legal doctrines at a level you feel comfortable understanding. It's hard to be more specific without being in the room with the 4 of you.
posted by Joey Buttafoucault at 11:27 AM on November 5, 2014 [16 favorites]


Pine's client should say to Pine "explain this to me like I'm five" and get a clear understanding of Pine's take. Then Pine's client and Walnut's client should decide if this matters or not, and instruct their respective lawyers accordingly: "we hear you and we've decided to keep/drop this." The end.
posted by zippy at 11:31 AM on November 5, 2014 [2 favorites]


I think your partner and your lawyer are concerned about this situation because not including the spousal support provision makes the agreement a bit one-sided. Basically: your parter doesn't trust you to not sue him over his house absent a legal agreement, but you're being expected to trust him not to sue you over spousal support. If it were all about trust and you both fully believed there was zero chance of anyone going to court over a breakup, there would be no need for a legal agreement in the first place. Since that's not the case, it makes sense for you to both be as protected as possible. You're young and healthy and independent now, but you don't know what circumstances might possibly lead to a break-up (one partner becoming ill and unemployed could certainly be one of those circumstances).

I would ask your lawyer to give you a copy of the provision of the law he's citing that specifically allows for support waivers in these agreements, and have your partner show that to Walnut. At some point, the law says what the law says. It might be the case that the Family Law Act is new and/or Walnut has largely practiced in a different area which does not have this provision. I think getting very clear about the specific law in your area should help clear things up.
posted by rainbowbrite at 11:41 AM on November 5, 2014 [8 favorites]


Plus, we are both honestly not worried that such a claim would ever be pursued by either of us…we are both young and healthy.

Well, you're only young until you get older, and you're only healthy until you're not. No-one can prevent getting older, and no-one chooses to get ill or injured.
posted by EndsOfInvention at 11:48 AM on November 5, 2014 [12 favorites]


As for "what questions" to ask, I guess start by asking him/her to explain the reasoning step by step why Pine's opinion is right and Walnut's is wrong, including discussion of the relevant legal doctrines at a level you feel comfortable understanding.

Yes, this, and in addition, ask Pine to tell you the kinds of worst-case scenarios he/she is envisioning. That will give you a real-world basis for deciding whether or not you need to follow Pine's recommendation.
posted by JimN2TAW at 12:06 PM on November 5, 2014


Is there a reason you can't get all four of you in the same room, have you and partner explain your end goal, and let the lawyers hash out what should or shouldn't be included in the agreement to facilitate your goals?

It seems awfully silly for you and partner to keep going back and forth like this over conflicting advice when the lawyers are in a better position to know what is or isn't a legally valid agreement. They already know your wishes, which from my reading seem to be on the same page already. In this scenario, you shouldn't be negotiating with partner to decide what goes in the agreement, the lawyers should figure it out.
posted by trivia genius at 12:08 PM on November 5, 2014


IANYL, and I am not a lawyer in Canada at all. Nothing here is legal advice and I am not advising you in any capacity.

I'd note that you're getting some confused responses here. If the lawyers are in disagreement, it is up to the lawyers to resolve the issue. I have no idea why Walnut is talking to you at all (that's typically prohibited in the US where a party has counsel), and you certainly don't need Pine to give you a copy of the statute for you to share with your partner and have your partner give to Walnut. If Pine tells you "OP, you need X because of reasons," and reasons are important to you (don't want to pay support, or whatever), you tell Pine , "Ok, that sounds reasonable--go work it out with Walnut." You, as a client, are not expected to research or really understand the law; that's what you're paying an attorney for, the privilege of having his/her expertise. Good on you for wanting to understand, though it's not always true that "At some point, the law says what the law says." Just have the lawyers figure this out.

Again, not legal advice and I am not your lawyer. Get Pine to earn his/her fee.
posted by Admiral Haddock at 12:11 PM on November 5, 2014 [5 favorites]


If the two attorneys are disagreeing, it appears that you have reached such a situation - you and your partner's interests differ.

That is not how I read the situation.

What I am hearing is that the two lawyers have a difference of opinion on a matter of law. One of them says that the agreement is essentially invalid without clause X, the other says it is perfectly valid without clause X.

It is very common for attorneys to disagree about what is fair. My attorney talks to me about that all the time: "they will want this, but that's really unfair to you. You should ask for that, and if they think that isn't fair maybe you can agree to this other thing." That's not what is going on here.

If you can't get a satisfactory explanation out of your attorney I would suggest bringing in a third attorney. I know, attorneys everywhere, agh! But I don't see how else you will get this difference of opinion resolved.
posted by alms at 12:14 PM on November 5, 2014 [1 favorite]


Yes, as alms notes, the lawyers have a difference of opinion on a matter of law. That's the gist of it.
  • My partner's lawyer is not talking to me -- I was copied on correspondence from him to my lawyer about the issue. Also my partner told me what their lawyer advised them. And my lawyer talked to me about what Walnut said -- saying it was not true as per the Family Law Act -- and sent me a snippet of the act to read.
  • Walnut and Pine have talked -- and they are at an impasse. My lawyer says Walnut is wrong about that waiver making the agreement less credible.That's the crux, I don't know if it does.

posted by Lescha at 12:26 PM on November 5, 2014


What I am hearing is that the two lawyers have a difference of opinion on a matter of law. One of them says that the agreement is essentially invalid without clause X, the other says it is perfectly valid without clause X.

Perhaps. But another thing that also happens frequently during legal negotiations is that one attorney wants X in the agreement, because it is good for his client. But he knows if he says "I want X in the agreement, because it's good for my client," that would draw the counterparty's attention to the fact that X might be bad for them, so instead the attorney says something like "I want X in the agreement because [some tenuous legalistic reason]." Then, if the counterparty's attorney doesn't know the law very well, is overly trusting, isn't paying close attention, or whatever, X gets into the agreement without dispute.

... "they will want this, but that's really unfair to you. You should ask for that, and if they think that isn't fair maybe you can agree to this other thing." That's not what is going on here.

Are you sure? I can't know the parties' motivations from the short summary here, but I am less sanguine than you are about Walnut's position based on that summary. I think Lescha should get more information from Pine about why this provision should be included in (or excluded from) the agreement, why it matters so much, and what the potential downsides are if it doesn't go the way Pine is advising. And while I agree with Admiral Haddock on the general principle that the client shouldn't need to understand the law in detail, apparently the client here has been swayed (or at least confused) by some statements by opposing counsel, so may be comforted, and have issues clarified, by walking through it with his/her own lawyer.
posted by Joey Buttafoucault at 12:36 PM on November 5, 2014 [2 favorites]


There are a few options here:

1. Decide that the risk of not waiving spousal support is something that you're comfortable with and drop the issue.

2. Partner decides that the risk of including the waiver is something he/she is comfortable with and drops the issue.

3. Have each attorney draft an opinion memorandum stating the legal basis for their claims (spoiler alert: this is expensive), then reevaluate the risks/benefits.

4. Get a second opinion from another attorney.

You are allowed to go against your attorney's advice. They will likely draft a memo to file regarding their advice and your decision to ignore it (to cover their own liability issues).
posted by melissasaurus at 12:37 PM on November 5, 2014 [1 favorite]


Frankly, I think this is a situation that calls for what Brandeis called "counsel to the situation". You two are not currently adverse and are in agreement that you wish to enter a transaction. You both agree to a spousal support waiver, and you both agree that you want an enforceable agreement. I don't understand why you do not retain a single practitioner to draft the agreement and counsel you both regarding your respective rights and duties. If you were in Quebec, this situation would be well-suited for a notaire (not to be confused with a notary public).
posted by Tanizaki at 1:21 PM on November 5, 2014


Tanizaki, from what we advised: cohabitation agreements signed without the involvement of two lawyers run the risk of being overturned by the courts, should they ever be challenged. Mind you, given how much this is costing us -- I wish we could've went with one lawyer or a mediator.
posted by Lescha at 1:28 PM on November 5, 2014


My (admittedly limited) understanding of the law is that courts look to the intent of the parties at the time of drafting when interpreting contracts/agreements. Perhaps in addition to the formal, legal language your lawyers have drafted, you can include a self-authored note, signed by both of you, to the effect of "we both intend that partner should retain sole ownership of his/her home if the partnership ends. As a separate matter we promise not to seek spousal support from one another if the partnership ends, but only under the assumption that this promise is legally valid and would not invalidate our other explicit intentions."

Certainly not ironclad, but it may help.
posted by trivia genius at 1:53 PM on November 5, 2014


INAL. I have done some contract negotiations but don't know Canadian law or family law. However, I would ask Pine if why you couldn't add a severability clause that says that if spousal support waiver section doesn't hold up, it is the intention of the parties that the rest of the agreement still be enforceable. Without this, I could image a court would be concerned that your partner gets the house AND sues you for spousal support. Or you deserve support from her and gets the house plus doesn't have to pay you. (Cause if everything is going according to plan and that's not happening, this wouldn't be a court issue) So, if something like this would protect the house thing from any variability around the support issue, then both you and your partner should instruct your lawyers to find a way to include the spousal support waiver while make it clear that the
posted by metahawk at 4:46 PM on November 5, 2014 [1 favorite]


Your partner's lawyer has a duty to your partner to achieve the outcome your partner wants. Your partner can tell his lawyer "Hey, yeah, look, I understand this is something you think should/shouldn't be in there, but I'm fine with it, the outcome I want here is sorting this out and not making this a big deal". Why hasn't your partner done that? This is possibly kind of awful but are you absolutely sure your partner is being truthful with you?
posted by ddd at 12:59 AM on November 6, 2014


This is possibly kind of awful but are you absolutely sure your partner is being truthful with you?

Yes, I am -- no question in my mind. Partner is absolutely truthful -- we're just both frustrated. We both agree that the sole ownership of the house is the key thing. I am going to talk to Pine to get their more detailed explanation (in terms I can understand - thanks all) of the agreement and why Pine thinks they're are serious issues for me. I will discuss this what Pine says with partner and go from there.
posted by Lescha at 8:16 AM on November 6, 2014


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