Crafting Prenuptial Agreements Using the Collaborative Law Model

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The experience of entering into a prenuptial agreement is an awkward and surreal experience:  On the one hand, you are madly in love, engaged, and perhaps, in the middle of planning the wedding of your dreams.  On the other hand, you are negotiating a prenuptial agreement determining the terms of a potential divorce that may occur in the future.  This uncomfortable situation will never be completely alleviated – no matter how much the couple is in love or the caliber of each of their attorneys.  Furthermore, although each person entering into the prenuptial agreement is trying to protect themselves as much as possible in the event of a divorce, there is no such thing as an absolutely “perfect prenup.”  However, using the Collaborative law model rather than a typical litigation model can be a much more effective method in crafting prenuptial agreements.  By focusing on cooperation and the interests and goals that each person in the relationship may have, the Collaborative approach decreases the inherent tension and feelings of “unfairness” in prenuptial agreements.

FOCUS.  The Collaborative law model is focused on cooperation and problem-solving. Both parties work together to accomplish mutually agreeable solutions. By working with their collaboratively trained attorneys and other trained professionals such as a financial neutral and a mental health neutral, the parties can craft a prenuptial agreement that meets both their interests and goals in the event of a divorce.  In this way, the couple are empowered by having control in shaping their potential futures.

This focus is very different in the litigation model.  The litigation model is naturally an adversarial one.  Each attorney for the parties is looking to maximize the benefits for their own client, while minimizing the other’s benefits. Often, this involves lengthy and contentious negotiations in which it may seem the only people benefiting are the attorneys.

PERSONALIZED SOLUTIONSSince the focus in the Collaborative law model is one of working together to meet the specific interests and goals of each person, and with the couple having a strong involvement in creating their prenuptial agreement, the Collaborative law model produces personalized, creative solutions that work for the specific couple at hand.  Couples are able to define their own terms for dividing their property, alimony, and other financial issues.

In the litigation model, the parties are usually constrained by the prevailing law controlling these issues.  There is less flexibility and the unique interest and goals of the couple may not be taken into consideration at all.

COMMUNICATION.  Paramount in the Collaborative law model is the concept of open, transparent, and respectful communication.  Couples are able to discuss their concerns and priorities which can lead to more mutually satisfying resolutions. Moreover, prenuptial agreements compel parties to discuss their finances, assets and debts, and financial expectations.  In the Collaborative law model, open and transparent discussions surrounding these issues prior to marriage can prevent potential issues developing later.

Conversely, the adversarial nature of the litigation model values obscurity and secrecy over transparency.  In these situations, prenuptial agreements can be completely one-sided and may result in the “aggrieved” party attempting to set aside the prenuptial agreement years later.

PRESERVATION OF RELATIONSHIPS.   An objective in the Collaborative law model is to see parties maintain amicable and respectful relationships despite the conflict they are experiencing with each other.  A well-drafted and purposeful prenuptial agreement created by the parties themselves (with the assistance of the collaboratively trained professionals) that keeps the specific interests and goals of each party in mind can reduce conflicts, avoid potential contentious litigation, and preserve the friendly relationships between parties after a divorce.

Simply, the adversarial nature of the litigation model can lead to heated litigation, straining the relationship between the parties that once considered the other to be the perfect partner.

The overall experience and the end results of a prenuptial agreement can differ significantly depending on whether you choose the Collaborative law model or the litigation model.  However, in either model, the Artemis Approach is consistent—-we utilize a problem-solving style that advocates for our client, while maintaining integrity, and being respectful of others.  If you are considering a prenuptial agreement, please contact us to discuss this or other family law issues by scheduling a consult today.

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