(Phone rings, Lawyer answers): Good morning, Law Offices, how can I help you?
(Potential client): I’m getting married in 6 months, and my fiancée wants a prenuptial agreement.
Lawyer: I’m so glad you didn’t wait till the last minute. It can take a while to complete a prenup, and it’s better not to be under a time pressure when you already have so many other things to plan when getting married.
First, let me share with you that I only do these agreements collaboratively. Client: I don’t know what that means, can you explain?
Lawyer: Sure, let me start by contrasting. It used to be that when people did prenups, the person interested in having a prenup went to a lawyer, the lawyer drafted it, and sent it to the fiancé́, the fiancé́ then had to find a lawyer, sometimes under time pressure before the wedding date. This is the traditional model, a negotiation. The problem I have always had with that approach is it feels one sided, and often-times, the drafting lawyer makes decisions advocating for his/her client, not even knowing the full picture, and not knowing the wishes of the couple. This can be a real problem because the draft of the prenup sent to the other party may feel so hostile that it creates unnecessary problems between the couple getting married. The draft may well include things that the couple never even discussed or contemplated.
Client: I don’t like the sound of that.
Lawyer: There is another way. By using a collaborative approach, we can avoid the hostile environment that can occur in a negotiation, because you are both part of creating the agreement. In a collaborative approach, we work together to reach an agreement that satisfies the interests and concerns of both parties. For example, if I’m your lawyer, I’ll have a separate conversation with you about your circumstances, why you or your fiancée want a prenup, and areas the prenup needs to address. If your fiancée is willing, they also meet with a collaborative lawyer. The lawyers talk to determine what the issues may be and create an agenda for the first meeting. When the four of us meet together, we ask questions and explore choices, options, and information, to help come up with an agreement that reflects how you want to proceed as a married couple. Depending on the complexity of issues, this can be one meeting or a couple of meetings, but with all of us together. Once we know what you want, one of the lawyers’ drafts, the other reviews, to be sure that we understand and agree that the draft is accurate as to your wishes. Then we send it to the two of you for review and comment. In this way, the process is organic, we are problem solving and creating this agreement with the two of you.
Another benefit of this approach is that you avoid two lawyers going back and forth with disputes over details and language. There are timing issues in signing a prenup, and having both lawyers involved at the beginning, working together, will speed up the process and avoid unnecessary delays.
In my experience, this results in a more durable agreement, because both of you have a part in creating it. As a result, it is more efficient and less costly to create an agreement you are both comfortable with, which preserves a loving relationship.
Client: I really like this idea and approach to a prenup, and I feel better about doing this. What do we do next?
Lawyer: The next step is for you to talk to your fiancée and let them know about our conversation. If they’re on board with this approach, let me know and you and I will set up a meeting. At that time, I’ll provide a list for your fiancée of other collaborative lawyers to consider.
Deborah Ewing and Kimberly Davidson are experienced family law attorneys in the Los Angeles area, and are members of A Better Divorce, LACFLA, CP Cal and IACP, all collaborative family law organizations.