Collaborative Practice and Premarital Planning and/or Agreements
What is a Premarital Agreement?
A Premarital Agreement, sometimes also called a Prenuptial Agreement, is a set of rules created by an engaged couple to govern their financial lives during their marriage and to determine what will happen in terms of property division and sometimes spousal support if they should divorce, rather than some or all of the legal rules imposed by default on California marriages.
The enforceability of a Premarital Agreement (and sometimes by analogy a Postmarital Agreement) is governed by California’s version of the Uniform Premarital Agreement Act. The rationale behind a valid, enforceable Premarital Agreement is to ensure that no one is rushed that signing the Agreement, that the Agreement and signing the Agreement are voluntary, and that both parties know enough about what they are doing.
Why Have a Premarital Agreement?
A couple who creates their own Premarital Agreement believes that they can create more appropriate rules that will fit their unique situation.
There are many important and legitimate reasons why some couples choose to enter into Premarital Agreements. One of the spouses may be part of a family business, which needs to stay uncomplicated and separately owned and managed. The couple may be moving into a home owned by one of the spouses, who wishes to protect his or her separate interest in the property. One of the spouses may have gone through an extremely prolonged, costly and painful divorce, and wishes to create clear “divorce rules” to avoid a potential repeat of this difficult experience. Some couples simply want to plan carefully for their financial future, and wish to have their own set of rules that suit them better than those imposed by existing Family Law statutes. Some couples are very happy with California Family Law, but may contemplate moving to another state and wish to adopt California rules as their own, regardless of where they reside.
It should also be noted that couples may determine, after learning about the default rules for California marriages, that these work well enough as is and that no Premarital Agreement is needed.
Why Use Collaborate Practice?
Collaborative Practice is tailor-made for drafting Premarital Agreements, as collaborative attorneys are trained in facilitative, open discussions. Collaborative Practice encourages both parties to develop their goals for the relationship and one another, and to take one another’s concerns and goals into account. Collaborative Practice is also well suited in that the parties create their own terms of an agreement together, more as a planning process than an adversarial one.
Traditionally, the request from one of the spouses or intended spouses for a Premarital Agreement was the beginning of a painful process that often drove a wedge between two people who were supposed to love each other. It was handled only by attorneys, and the process began with what was usually an extremely one-sided draft being presented by the requesting fiancé or spouse as a fait accompli to his or her fiancé or spouse. The attorneys then exchanged and battled over drafts of the “Agreement,” creating a “we-they” situation that felt adversarial and threatening, building mistrust and disharmony in an otherwise secure marriage or on the eve of what was supposed to be the happiest day of parties’ lives. Often, the spouse being asked to sign a Premarital Agreement felt that the Agreement was being forced on him or her and felt mistrusted, unprotected and uncared for by the other spouse. The spouse requesting the Premarital Agreement then interpreted the reluctant spouse’s objections as being greedy and selfish.
Even if the request itself did not create this atmosphere of mistrust, the ongoing battle between the attorneys robbed the couple of their own voice, and made what should have been a joint planning process into an adversarial one. Many simply succumbed to the exhaustion of the process and signed in the end “just to be done.”
What Does the Process Look Like?
Before a first draft is created, both parties are educated about California’s “default” marital law, which sets out the rules that would apply upon divorce if they did not create their own Premarital Agreement. They can then decide if they want a Premarital Agreement to change any of these “default” rules.
Each party retains a collaborative attorney, and the parties and attorneys meet together to discuss which of the “default” community property, separate property and/or spousal support 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 Premarital Agreement is needed; and
- Each person’s concerns about the consequences of a Premarital Agreement in terms of his or her own need for security and for being cared for by the other person.
The attorneys may reduce the agreements to bullet points to make sure there is agreement before starting to draft anything. Then the attorneys draft the Premarital 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, most Collaborative professionals strongly prefer that both parties have their own advising attorneys to educate them as to their legal rights, to support them in the process, to review the final Agreement and any questions with the client, and to sign any eventual agreement. In cases where people are making their own rules about potential spousal support, most professionals agree that it is mandatory that both parties have their own attorneys for these Premarital Agreements. If the fiancés are negotiating their Agreement in a Collaborative Process, the attorneys are both in place at the outset.
What About the Rest of the Team?
In a Collaborative Premarital Agreement process, adding professionals other than the attorneys to the team can enhance the process and strengthen the fiances’ 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 and for their new life together, particularly when working with difficult emotional issues in the drafting of the Premarital Agreement and/or blending existing families.
If you and your fiancé believe that you might want to create a Postmarital Agreement or a Cohabitation 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.