When people think about Premarital Agreements (prenups), they think about divorce planning, about the doom and gloom if there’s a divorce. All marriages end – in death or divorce — but a Premarital Agreement can help you think about more than just the end of a marriage. A Premarital Agreement, particularly using a Collaborative approach, allows intended spouses to think and talk about their life and financial goals with the support of a professional team.
A Collaborative Prenup allows you to plan for life, death and divorce, all in a supportive Collaborative environment. What’s the difference between a Collaborative Prenup and the more traditional approach? The traditional legal approach to creating a Premarital Agreement is adversarial in nature. It’s one partner versus the other partner, working with his or her own attorney with a single-minded focus on protecting a party’s interests from potential encroachment by the other party. There is no focus on determining joint interests or goals and little thought to any events beyond divorce.
Even though parties are on the brink of one of the most significant joint events they will undertake, the traditional Premarital Agreement keeps parties in separate corners with the main communication lines occurring between the party and his or her attorney. In the traditional model, the agreement-seeking party meets with his or her own attorney who develops the first draft of the proposed agreement. The draft is usually the best-case scenario for the party requesting the agreement. The proposed agreement is then provided to the other spouse through the attorney, landing like a ton of bricks. Since the Agreement and the goals of the Agreement were never really discussed between the intended spouses, except maybe over the breakfast table, the provisions of the Agreement are usually received as intimidating, scary and confusing. Then there is usually a flurry of back-and-forth communications between the attorneys to negotiate the provisions of the Agreement, with the Agreement being revised with each exchange.
In contrast, with a Collaborative Premarital Agreement, no agreement is drafted until the parties identify their goals and interests and discuss provisions that would meet their goals and interests. In a structured environment with the support of each party’s attorney, the two intended spouses and two attorneys come together for one or more four-way meetings in which the issues and concerns of each party are addressed. The parties are educated about the default law so that they can understand what areas of the law they want to keep and what they want to change. They can discuss together how the premarital agreement addresses their life goals, recognizing the inevitable end of a marriage (either in death or divorce). When the agreement is drafted and the parties read it for the first time, the provisions reflect ideas that the parties already discussed. Nothing is a surprise in the agreement.
Additional professionals can help the Collaborative model, including a Premarital Communication Coach (PCC). A PCC is a licensed mental health clinician who has specific training in Collaborative Team Practice, couple’s communications, and understands the issues that creating a prenup bring to the couple, offering a variety of skills to help the couple strengthen their relationship even as they tackle the difficult and emotional challenge in front of them. A PCC works with both parties to help them explore their attitudes, ideas and feelings associated with drawing up a premarital agreement; impart skills in non-defensive communication that will strengthen the relationship; help the parties understand and manage reactive responses to the emotions that financial topics often stimulate; and increase the assurance that the agreements they are making are ones they truly understand and can support.
Another professional who can be involved in a Collaborative Premarital Agreement is a Premarital Financial Specialist (PFS). The PFS can approach the process from a financial planning perspective. The PFS can create an atmosphere from “make a contract” to “focus on planning for marriage.” The PFS can help the couple with money management and budgeting advice, help with planning for children’s college, the purchase of a new home and retirement. They can also discuss the needs of married people, including life, health and disability insurance and the more practical decisions such as, will they have joint bank accounts.
The crux of the Collaborative model is to support the legal, emotional, and financial pillars of a marriage and to allow the couple to work as a team, with the support of their professionals, on one of the most important joint ventures they will undertake – marriage.