Thanks Chris,
Your observations brought to mind two reflections.
First, just because the clients are on the "warm and fuzzy" end of the
relationship, doesn't render them any less vulnerable. It just tends not to be
apparent, at least in the same way that it is when the relationship is rended
and exposed. So the question is, how do we as professionals create a safe
place for the parties to express these concerns and vulnerabilities at the very
threshold of their commitment to one another. Safety [which I see as the sine
qua non of any collaborative process] dictates that there is a forum in which
the unstated can be expressed, acknowledged, normalized and woven into the
fabric of agreement. The double exclusion you describe is like a spot of rust
on a shiny new relationship. It will ultimately corrode if not attended to.
When these discussions are limited to the framework of a discussion about the
"law," the family dynamic issues you describe, generally never even make it to
the table, in part because it is not part of a lawyer's training. Another
example of the benefit of an interdisciplinary approach.
That said, there are also limits that can result from the basic structure of
the Collaborative Practice model. Collaborative lawyers who would do a
prenuptial agreement without participation from their collaborative therapist
colleagues, would need the highest skill level to create sufficient trust in
the safety of the process, such that the clients could express their deepest
feelings about the impact on the emotional partnership of this pre-marital
agreement about their financial partnership. Additionally, the professionals
would have to have the skill to draw out those conversations where even the
guarantee of safety was not sufficient to overcome the clients' trepidation to
go into something so distinctly unwarm and unfuzzy.
Chip
-----Original Message-----
From: Chris Burr <cburr@xxxxxxxxxxxxxxxx>
Sent: Jan 12, 2007 12:19 PM
To: CollabLaw@xxxxxxxxxxxxxxx
Subject: Re: [CollabLaw] Collaborative Law for Pre-Nuptial Agreements
Thank you for those comments Chip; that's an excellent overview. An issue
that has come up in therapy has occurred when one member of a younger couple
is being guided or "made" to take actions to protect assets; when action is
taken in this way the left out spouse has a feeling of double exclusion, one
by the parent/s-in-law, the other by the new spouse. Obviously this is a
difficult way to start a marriage and the frank discussion that you suggest
can allow for some of the feelings of exclusion to be processed.
Chris Burr
Collaborative mental health professional
Rochester,NY
----- Original Message -----
From: crose@xxxxxxx
To: CollabLaw@xxxxxxxxxxxxxxx ; CollabLaw@xxxxxxxxxxxxxxx
Sent: Thursday, January 11, 2007 6:01 PM
Subject: Re: [CollabLaw] Collaborative Law for Pre-Nuptial Agreements
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
>
>NOTICE: PRIVILEGED AND CONFIDENTIAL: This electronic mail message and any
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>[Non-text portions of this message have been removed]
>
>
>
>
>Yahoo! Groups Links
>
>
>
Chip Rose, J.D.
The Mediation Center
550 Water St. Ste. J3
Santa Cruz, CA 95060
831-429-9721
www.mediate.com/crose
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