By: Paula H. Noe, Esquire
(Article originally printed in the ‘Boston Women’s Journal’, December 2006)
More and more couples (young, older, different or same-sex, whatever….) who are contemplating marriage these days are also convinced (by themselves, their families, their friends?) that they need a prenuptial agreement, which is often a really good idea. I always tell my clients that the could and should consider a prenup if: 1. They want or need the opportunity to talk about their finances and /or 2. They have property they should consider protecting (at least for now) or preserving in the event of divorce.
Traditionally, Pre-nups or Post-nups have been negotiated between attorneys, with the couple waiting on the sidelines and the attorneys indulging in ‘traditional’ lawyer-lawyer negotiation (one lawyer drafts and sends a proposed agreement after consulting with only his or her client, and then the other attorney refutes it, either wholly or in part, so that the ‘real’ negotiations can begin.) In the extreme, the couple end up with an Agreement at the last minute before the wedding, one that is possibly an unfair, one-sided agreement that results in one or both of the couple having lingering regrets and anger about the process and the resulting Agreement. This artice proposes another method – that of The Collaborative Process, which allows, instead, the couple to create the document together, to be heard, to participate within the process, and to establish that all of the necessary criteria are met for their agreement to be valid and enforceable.
Each party retains a collaboratively trained attorney as the first step.
After the attorneys have contacted each other, the couple and the attorneys meet in a series of 4 way meetings designed to address the issues and create an Agreement, which captures the interests and the needs of the couple. The attorneys develop an agenda in advance of each meeting so that there are no unnecessary surprises and so that everyone knows what to expect during any meeting. The attorneys and the couple all agree to exchange documents willingly and cooperatively. The attorneys can agree to take turns recording the minutes of each meeting so that everyone knows exactly what has been discussed and/or agreed to at each step. Often there is ‘homework’ to complete between each meeting; this ‘homework’ can be gathering of financial documents or other information which is necessary so that everyone has a complete understanding of the current financial situation of each party at the time of the collaborative process. The meetings are scheduled and planned ahead of time so that they are convenient, everyone knows about the meetings, and the couple is certain that the matter is progressing towards meeting their interests.
Whenever appropriate the couple and the attorneys can agree to bring in professionals to help the couple and the process. For example, it may be necessary to have an appraisal of one or more pieces of real estate, and the couple can agree to hire one appraiser jointly, instead of having each party hire his or her own appraiser, this reduces costs and avoids setting the stage for the ‘dueling experts’ scenario. The parties’ interests may be served by jointly hiring a financial planner who can look ahead and provide tax or retirement planning or other projections so that the picture is complete for all. In certain matters it may be appropriate for a mental health professional to assist a participant in addressing the emotional/psychological issues that may crop up, so that the couple is empowered to make meaningful and healthy decisions, decisions that may effect existing family members.
Through a series (there is no set number because each relationship is different) of 4 way meetings, the couple and their attorneys draft an Agreement which is fair and equitable, in which the clients are fully-informed and the process has been completely transparent, with nothing hidden from anyone. Then the couple and their attorneys have a ‘signing ceremony’ whereby the parties willingly and (usually) happily sign the Agreement, thus ending the structured negotiation process and beginning the rest of their lives, knowing that they have learned, discussed, negotiated and planned together.
WHO WILL BENEFIT FROM THE COLLABORATIVE PROCESS?
Clients who undertake the collaborative process have found that they:
1. Clarify their expectations and financial realities, thereby learning what is possible and eliminating unrealistic financial views.
2. Establish joint goals and problem solving mechanisms.
3. Create their own rules and decisions about what could happen in the event of divorce, thereby eliminating the fear and financial devastation that could happen in a divorce without a pre or post nuptial agreement. (The collaborative process can also serve to address the concerns and interests of existing family members, such as in second marriages).
4. Eliminate the fear of ulterior motives by participating in the joint and transparent process.
5. Build a commitment to each other.
1. Later Life Marriages
2. Subsequent Marriages
3. Dual Professional or Two Income Families
4. Extended Families or Business Partners (i.e., former spouses, concerned families)
5. Same sexed couples
6. Married Couples with Financial Differences
7. Married Couples Seeking to Modify their PreNuptial Agreement
In summary the collaborative process is well suited to assisting couples in determining what terms should be included in their pre or post nuptial agreement, or to review the fairness and reasonableness of an existing pre/post nuptial agreement. This is because the collaborative process is designed to encourage individuals to focus on their interests through dialogue and creative compromise. It establishes an environment that encourages conversation and respect. An environment where the parties are able to emotionally, psychologically and financially commit to an agreement so that parties may achieve an outcome that is equally fair. (See www.massclc.org and www.collaborativepractice.com for more information about Collaborative Practice, in family and civil matters.)
Engaged and married couples now have the perfect opportunity to learn to address complex, sensitive financial and emotional issues with respect and dignity by choosing to draft their pre-nuptial or post-nuptial agreements collaboratively. Already-married couples who want to formalize certain understandings about their marriage will benefit greatly from participating in the Collaborative Process in order to create the documents that will protect and preserve their interests now and in the future. We encourage you to take this opportunity. Best wishes.
PAULA H. NOE, Esquire, practices family law and can serve as Advocate, Arbitrator, Collaborative Attorney, Divorce Mediator, Elder/Adult Family Mediator, Parenting Coordinator or Settlement Counsel. She believes in the ultimate strengh and possibilities of families and of communications, and bases her practice on her ability to guide families to a fair and equitable resolution, with respect and dignity., whenever and however appropriate. Paula has been named a ‘WOMAN OF DISTINCTION IN LAW AND PUBLIC SERVICE’ by the Massachusetts Association of Women Lawyers. She is Past President of the Massachusetts Collaborative Law Council, is a founding member of the Council and has been a board member since 2000; she currently serves, at the request of the President, on various MCLC committees. She has trained other professionals in Collaborative Law for the Massachusetts Collaborative Law Council and for the American Bar Association, and has written and lectured extensively about Collaborative Law practice and ethics, both locally and nationally. She is currently Co-Chair of the Family Law Committee of the American Bar Association’s Dispute Resolution section. She also serves on the Collaborative Law Committee of the American Bar Association section of Dispute Resolution, and on its Ethics subcommittee where she co-authored its 2008 Ethics position paper. She is a founding partner of Family Law Collaborative Solutions, LLC, in Dedham, MA., and can be reached at 781-326-9309, x 204 or at firstname.lastname@example.org. For more information and publications, visit www.familylawcs.com.