Collaborative Practice and Postmarital Agreements
Collaborative Practice is a useful tool for more than just divorce dispute resolution. Couples in an ongoing relationship who are looking to amicably and respectfully create a set of rules together to govern that relationship are also well served by Collaborative Practice.
What is a Postmarital Agreement?
A Postmarital Agreement, sometimes called a Postnuptial Agreement, is a set of rules created by a couple during their marriage for many of the same reasons that an engaged couple creates a Premarital Agreement: to govern their financial lives during their marriage and to determine what would happen in terms of property division if they should divorce. Couples who’d like to create a Postmarital agreement also believe that they can create their own rules to fit their unique situation, rules that will be preferable to those imposed by California Family Law.
There is an additional enforceability hurdle for couples wishing to enter into a Postmarital Agreement: as spouses, they are subject to a set of fiduciary duties that do not exist for fiancés. These, among others, include the duty not to take financial advantage of the other spouse. A Postmarital Agreement, since it usually includes some circumventing of community property law, is going to be subject to a presumption that one spouse is taking advantage of the other.
In order to avoid the presumption of unfair advantage, most professionals believe that it is imperative that both spouses be represented by attorneys and that all steps be taken to show that both spouses signed the agreement freely, voluntarily and with full knowledge of rights he or she could be giving up.
Why Have a Postmarital Agreement?
Sometimes there is not enough time before the wedding to create a Premarital Agreement. While some may prefer to wait until the flurry of wedding activity has died down to work on the agreement after their marriage takes place, the safer practice is to complete the agreement before the wedding (a Premarital Agreement). Sometimes things happen that change a couple’s finances during their marriage; for example, one spouse may wish to protect his or her newly inherited separate property or one spouse seeks to be protected from the other spouse’s debt. Because there may be differences in the enforceability of Premarital Agreements vs. Postmarital Agreements, it is a good idea to get legal advice, if time permits, before choosing to forego a Premarital Agreement in favor of creating a Postmarital Agreement during the marriage.
What Does the Process Look Like?
Before a first draft is created, both parties are provided with their “default” Postmarital Agreement (according to existing California Family Law), which sets out the rules that would apply if they did not create their own Postmarital Agreement.
Each party retains a collaborative attorney, and the parties and attorneys meet together to discuss which of the “default” rules the couple wishes to modify in order to respect the following:
- Each person’s goals for the marriage;
- Each person’s goals for himself or herself;
- Each person’s goals for the other person;
- Each person’s concerns giving rise to his or her belief that a Postmarital Agreement is needed; and
- Each person’s concerns about the consequences of a Postmarital Agreement in terms of his or her own need for security and for being cared for by the other person.
The attorneys draft the Postmarital Agreement based on their discussions with the couple, and jointly present the first draft to the parties for their review and comments. Once the couple has provided their input, the Agreement is finalized.
Because of the stringent requirements for enforcing these Agreements, many professionals believe that it is mandatory for both parties to have their own advising attorneys to consult and to countersign the final draft of the Postmarital Agreement, particularly if the couple chooses to attempt to limit spousal support, which may or may not be enforceable. These issues are automatically resolved in that each party has his or her own attorney at the outset.
What About the Rest of the Team?
In a Collaborative Postmarital Agreement process, adding professionals other than the attorneys to the team can enhance the process and strengthen the relationship. Working with a financial professional can help the couple understand their finances and make better plans and rules to live by in the future, and may reduce the fear of the commitments they are making in the Agreement. Working with mental health professionals in the process can prepare the couple for healthier negotiations, particularly when working with difficult emotional issues.
If you and your spouse believe that you might want to create a Postmarital Agreement, the professionals of the San Francisco Collaborative Practice Group are trained to make this a productive and positive process. To learn more, contact any of our professionals, all of whom would be pleased to discuss your process options and help you decide which would best work for the two of you.
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To learn more about Collaborative Practice visit the San Francisco Collaborative Practice Group. The Members of the San Francisco Collaborative Practice Group are trained in both Mediation and Collaborative Practice and can assist you in whichever process you choose.