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Divorce Article

ISN’T IT UNROMANTIC?  Collaboratively Negotiating
Pre- and Post-Nuptial Agreements

By Sandra M. Rosenbloom, Esq. and Judith C. Nesburn, Esq.

It’s almost springtime, the season for romance, love and marriage. But wait a minute. There is something wrong with this picture, and it isn’t romance.  Isn’t this also the season for divorce?  On second thought, perhaps all seasons are seasons for divorce.  Dreamers believe love conquers all.  Planners believe in pre-nups.

Disaster planning is not restricted to Homeland Security. Before taking the trip down the aisle, too few American couples take the time or make the effort to think about what could happen if their marriages are one of the 1 in 2 marriages that do not make it to "until death do us part".  And even after the marriage, when the cold reality of everyday living and decision making starts to tamper down the heat of the honeymoon, most married couples do not recognize that it is not too late to plan for disaster without actually speeding it along.

We, as Collaboratively trained professionals, are in the unique position of helping our clients navigate the dangerous shoals of divorce disaster planning by Collaboratively negotiating pre- and post-nuptial agreements. Opening up a dialogue about money and marriage between a prospective husband and wife, or even long-married couples can help to keep them out of divorce court.  Whether or not the marriage eventually breaks down is out of our control.  But, we can make a difference, Collaboratively.

Pre-nuptial agreements have long been de rigueur for wealthy individuals.  And they have become more commonplace for couples who marry later in life, after accumulating personal assets or business partners, or enter into second marriages and have assets, children and/or grandchildren they wish to protect. A Thomson West poll published in early 2008 showed that 41% of Americans would be willing to enter into such pre- or post-nuptial agreements if requested. Yet, according to popular financial writer and motivational speaker Suze Orman, more than 90% of Americans marry without  prenuptial agreements.

Of those couples who do enter into pre-nups, the agreements have usually been the product of lawyer negotiations designed to protect the moneyed spouse-to-be’s assets from the non-moneyed spouse-to-be.  They frequently are negotiated close to the wedding date and can be a source of friction or distrust between the couple. The request for a pre-nuptial agreement may get the marriage off to a poor start if it surfaces at the 11th hour, reinforcing a perception that the other cares more for money than for his or her future life partner. As for post-nuptial agreements, even hinting at the idea of entering into one may raise unwarranted suspicions of "divorce planning".

This does not have to be the case.  The Collaborative process, with its emphasis on meeting the needs of both participants and its insistence on transparency, is the perfect vehicle to dispel the doubts and distrust that often are silent partners in negotiating pre-and post-nuptial agreements. Depending on the needs and interests of the couple in Collaborative negotiations, many different scenarios can be addressed in advance of the marriage or after the marriage.

Consider how the dialogue at the Collaborative table can address the interests of those not present but whose interests and/or needs may affect the future health of the marriage:  A mid life couple entering into a subsequent marriage can reassure each other that their respective children’s concerns will be considered as the couple enter into a new relationship; Investment decisions and career decisions that effect where the couple and their family will live can be addressed in advance.; "Yours, mine and our" marriages can set ground rules for dealing with "exes" and their families as well as children of the new marriage; Issues regarding siblings or in-laws may be discussed.

In fact, prenuptial agreements can serve the dual process of sorting out a couple’s finances before entering into marriage and helping eliminate sources of tensions that frequently erupt around money during the marriage. By turning to the Collaborative process, "future marrieds" have the unique opportunity to discuss taboo subjects such as money in a supportive and helpful way.  And "already marrieds" can have the opportunity to work out troublesome problems that crop up during the marriage before they prove too intransigent.

But is this truly Collaborative practice? Some of our colleagues have questioned whether a process that is in essence a contract negotiation fits into the Collaborative mold. What about the Participation Agreement, sometimes called the "heart" of Collaborative Practice? Is it even necessary when the alternative to a successful negotiation is not going to court but simply to cancel the wedding, cave in to the stronger negotiating partner, or get married without a pre-nup?

That begs the question. If we believe that the disqualification terms of a Participation Agreement are the only distinguishing features of the Collaborative process, that viewpoint might be valid.  But many if not most Collaborative practitioners believe that it is the process that separates Collaborative practice from traditional legal approaches to family law matters, including drafting pre- and post-nuptial agreements. 

The authors’ view is that the essence of the Collaborative process in negotiating a pre-or post-nuptial agreement is captured in the dialogue that happens in the Collaborative meeting. In the safety of the "Collaborative Cocoon" both parties’ needs and concerns can be addressed in an environment that promotes open and creative discussion.  A Participation Agreement should still be signed by all who are part of the Collaborative team working on a pre- or post-nuptial agreement, as it contains terms relating to (1) confidentiality of discussions which take place in a meeting with all Collaborative professionals and (2) all parties’ commitment to good faith and transparency.

Practitioners who engage in the Collaborative Process with clients drafting pre- and post-nups will reap an added bonus. Drafting pre- and post-marital agreements have long been considered "hot potatoes" for family law practitioners, who fear their exposure to liability if the couple divorce and one party seeks to challenge the enforceability of the agreement. The authors believe that practitioners actually will face less exposure to liability if they engage in the Collaborative process. Agreements that are the result of joint decision-making and transparency lead to more client satisfaction.  Furthermore, by including mental health and financial practitioners in the process the Collaboratively represented couple receives additional educational and therapeutic benefits.

On balance, negotiating pre- and post-nuptial agreements through the Collaborative process helps couples establish goals, develop problem-solving techniques, and create their own financial rules and decisions relating to death and divorce.  By engaging in the Collaborative process to negotiate a pre- or post-nuptial agreement, parties can be reassured that their Collaborative professional team will work with them to provide a constructive and sensitive environment within which to conduct the difficult conversations that are often required to work out effective Collaborative pre- and post-nuptial agreements.

[1] PR Newswire, Eagan, Minn., posted February 15, 2008
[2] Money Matters, Suze Orman, September 22, 2005 webposting

The authors wish to thank the following for their insight and comments: Brigitte Schmidt Bell, Collaborative Attorney and Mediator, Evanston and Chicago, Illinois; Fred Glassman, Collaborative Attorney and Mediator, Los Angeles, California; Paula H. Noe, Collaborative Attorney and Mediator, Boston, Massachusetts.

Some of the information contained in this article first appeared in the IACP Forum presentation "A (Not So) Funny thing Happened on the Way To (and From) the Altar", San Diego 2006, Fred Glassman, JD, Judith C. Nesburn, JD and Mary Elizabeth Lund, PhD; and presentation given before the California State Bar by Judith C. Nesburn, Esq. and Larry A. Ginsburg, Esq., "Tying the Knot Without Strangling the Romance:  Premarital Agreements for the New Millennium".

The nuts and bolts of conducting Collaborative pre- and post-nuptial negotiations will be addressed in a later article.

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Collaborative Law & Divorce Mediation Attorney Los Angeles CA

law & mediation offices of Judith C. Nesburn | 11661 San Vicente blvd. | Suite 500 | Los Angeles, CA 90049 | Phone: 310-207-4400 | Fax: 310-207-3118
law & mediation offices of judith c. nesburn
11661 san vicente blvd. | suite 500 | los angeles, ca 90049
phone: 310-207-4400 | fax: 310-207-3118
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