Bruce,
I have not yet had a collaborative pre-nup, but I have been doing them in a
mediation
context for years and found it to be a transforming process for the clients.
Given
that mediation and CP are both collaborative experiences for the clients, the
primary
difference in the two processes is form, not content.
The traditional pre-nup, as clients imagine it, is a one-sided, law-driven
procedure
in which one party (usually the husband-to-be) has significant assets and wants
to protect them against the possibility of divorce. He goes to his lawyer who
goes
to the form book in a one-sided exercise and builds Fortress Financial to
protect
his/her client. The process is usually being done just before the wedding and
delivers
to the fiancee, a message of exclusion, shortly before the most important
ceremony that
is supposed to represent inclusion.
What collaboration brings to this process. There are three significant "life
event" areas that couples should discuss attendant to something as important
as creating a life together. They are:
Issues of finance in the marriage: this includes the identification of marital
and separate property, the management and control of each; how financial
decisions
will be made; the impact of creating a family and the change in the employment
dynamics of each that comes with children; allocation of labor within the family
structure; and, recognition of the contributions each makes (where it is not
accompanied
by salary, wages, or social security contributions, such as for the non-working
parent)
Issues related to the possibility of divorce: Clearly there are no guarantees
with marriage. It is quite reasonable for people with separate property to want
to protect that property if the marriage does not succeed. On the other hand,
as
the years pass by successfully, the separate property spouse may wish to begin
converting
some separate property to marital property in recognition of the developing bond
of the marriage. This opens up the possibility of a very meaningful dialogue.
Issues related to estate planning: For second marriages, particularly where
there
are children of the prior marriage, raises challenging issues about the
disposition
of separate and marital property. The separate property spouse certainly does
not want to put the children-heirs in conflict with the widow or widower because
of lack of adequate estate planning. The use of life estates to guarantee that
arrangements have been made for the surviving spouse lets the heir children know
that they inherit subject to the wishes of the deceased parent and that parent's
concern for their spouse.
These are three major issues that make an extended dialogue about agreements
before
marriage so appropriate, to say nothing of necessary. Through the process the
mediator/CP
professionals can assist the parties in having conversations that are
uncomfortable
and awkward by normalizing the need for them and helping the clients go into
topics
that they would rather avoid because they are uncomfortable. I have been
encouraging
participants in collaborative workshops to consider the collaborative approach
as
one to market in this area, but most participants have struggled to learn how to
apply it to divorce first. This is another measure of the maturing of the
field.
Chip
-----Original Message-----
From: brutoria@xxxxxxx
Sent: Jan 10, 2007 9:46 PM
To: CollabLaw@xxxxxxxxxxxxxxx
Subject: [CollabLaw] Collaborative Law for Pre-Nuptial Agreements
Hello Collaborative Community:
Ann Schaibley and I have our first collaborative case doing a Pre-Nuptial
Agreement. I would be willing to bet that others have already been doing
this.
If so, we would love to start some dialogue about how to apply collaborative
principles to this area.
We are excited to work on the other side of the equation, and would like to
create a plan for how to do this, and how to market it effectively.
Please share some of your experiences, and we will tell you more about we
are doing as well.
Take Care
Bruce D. Peck
Collaborative Family Law
9202 Tyne Lane
Inver Grove Heights, MN 55077
(651) 994-9944
(651) 994-9955 Fax
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