Sunday, February 28, 2010

Collaborative Prenuptial Agreements

Our good friend Sam Hasler from Indiana has a brief post in his blog today about using Collaborative Law as the process for creating a prenuptial agreement. His blog, "Sam Hasler's Indiana Divorce & Family Law Blog" is always a source for new ideas and good approaches for dealing important family issues. Here's what he wrote about prenuptial agreements and Collaborative Law:

Family Law Week comes Collaborative prenuptial agreements find favour
"According to The Law Society’s Gazette, a rising number of clients contemplating marriage are asking for prenuptial agreements to be prepared using the collaborative law model. The report records a shift in attitude among clients who would prefer to adopt a more consensual approach to agreeing a pre-nuptial agreement rather than employ the more traditional, oppositional method of negotiation."

I have previously written about using Collaborative Law for prenuptial agreements for professional athletes and using it generally for prenuptials for anyone. Prenups are very often put off until the last minute before a wedding, which makes the process much more stressful and difficult. Sometimes weddings are cancelled or postponed because of intense negotiations that aren't resolved satisfactorily.

Here's why you should use Collaborative Law for prenuptial agreements:

1. The process fits the need. I am a strong advocate of using the Collaborative process for prenuptial agreements. Working out a prenuptial is almost like doing a divorce in advance. There must be a lot of disclosure, planning and problem solving. The parties need to be able to look into the future and make binding, very important decisions about their lives and financial well-being.

2. The (Texas) process utilizes a mental health professional. The negotiations often bring out the worst in people, if the issues aren't handled well. With Collaborative Law, we normally bring in a mental health professional to assist the parties to communicate effectively and deal with the stress, and that would be essential in this type of negotiation.

3. The (Texas) process utilizes a financial advisor for both parties. We also bring in a neutral financial advisor who can help each party understand the financial consequences of the terms under consideration. The financial advisor also helps evaluate the tax effects of various options. Another helpful element is having someone who can assist both parties with budgeting and projecting their needs and capabilities in the future.

4. There is greater assurance of transparency and the sharing of all relevant information. That is a fundamental element of Collaborative Law, so there would clearly be an emphasis on providing the needed information and openly discussing matters.

Using all the Collaborative professionals to prepare a prenuptial agreement will benefit everyone involved and help avoid the disasters of a failed agreement or an uninformed agreement. The Collaborative process would require that the parties start well before the wedding date, instead of waiting until the week of the wedding, which is what sometimes happens now. It should result in a better agreement, everyone feeling better about the process and a happier wedding.


Maury said...

My law practice in Cincinnati, Ohio is limited to Collaborative Family Law and Mediation. I am past chair of the Cincinnati Academy of Collaborative Professionals, a multi-disciplinary association of lawyers, mental health professionals and financial planners.
I happen to be of the opinion that Collaborative Law IS NOT appropriate for either pre-nuptial or post-nuptial negotiations. By their definition and purpose, these agreements anticipate a future disagreement. They contemplate failure of the marriage. The disadvantaged spouse's only leverage is to attack the agreement and his or her witness will need to be the lawyer who sat in on the negotiations. The Collaborative Participation Agreement will have most likely guaranteed the lawyer/witness privilege against future testimony and his or her client will have relied upon promises of confidentiality. I believe it presents a quandary not present in main stream Collaborative cases dealing with the end of a marriage.;

Unknown said...

As an Australian collabortive practitioner I was interested in the different perspectives on pre-nuptial collabortive agreements. WE hve the ability to assist clients and their partners enter inot binding financial agreements before they marry, during marriage and after seperation. The agreements don't carry much weight once children are part of the mix but are useful tools none the less to help couples without children to set up a framework for how they would want to divide the property after seperation.
I personally would rather use a collaborative model to have that conversation than rely on a solicitor negotiated model. In fact I have recently advised a client to encourage their partner to consult a collaborative colleague with whom I know I work well so that we can have that difficult conversation. I would really love to throw into the joint meeting a MHP like Linda Solomon. We are still in our infancy in Adelaide and our first trained MHP Amanda Shea Hart will hopefully be able to be part of our joint meetings.