In this post, I am going to discuss collaborative law as an alternative to the typical or traditional way prenuptial agreements get written.
A prenuptial agreement is an agreement spouses can sign to put in place their decisions for how issues are to be handled if they divorce or one dies, to replace the default rules under Florida law.
Traditional Approach
In a traditional approach to a prenuptial agreement, fiancés often talk together about what to include in an agreement, but then one fiancé typically will consult with and retain an attorney, who advises regarding provisions to include to provide protection for assets and income. The attorney will prepare an agreement – usually long with a lot of legal drafting, which then goes to the other fiancé and his or her attorney if he or she retains one.
The attorney reviewing the agreement for the second fiancé will discuss risks for their client from the provisions in the agreement, and ways to change the agreement to be more fair or better provide for the second fiancé. It often becomes a process with fiancés in separate camps, with their attorneys discussing the risks and issues in the event they divorce or either dies; with each fiancé aligned, at least in part for the moment, with his or her attorney.
This traditional legal method can sometimes if not often create some tension before the marriage. Part of this arises from the fact that many attorneys consider a pre- or post-nuptial agreement to be the highest-risk agreement they can draft, and feel they need to go through and explain each possible provision, and warn their client about all the risks. And there are in fact different options for drafting each part of the agreement, with the different alternatives providing more or less financially for the second spouse, or maximum protection for one spouse — or something more in the middle.
There are many issues to address in addition to dividing property and providing for spousal support, for example the issue of payment of attorneys fees in the event of a divorce, which can make a significant difference for the parties during the process of divorce.
A Collaborative Approach
A collaborative approach, grounded in the principles of collaborative family law and conscious contracting provides, in my opinion, a more positive alternative.
In this approach, the process will start with everyone together (often we include a facilitator also, in addition to the attorneys and clients) with the fiancés discussing their vision for the future – what they each value and what is important for them together, versus conversations about the risk the other may pose in a divorce, and how to draft to protect from the other fiancé.
As part of the process, we still can go through the different issues –- dividing assets acquired during the marriage, increase in value of pre-marital assets, spousal support, etc. This is done though with both attorneys and clients in the room. The attorneys can provide input regarding the issues – what the options are, what can provide protection or benefit for one client or the other, what is most consistent with the spouse’s shared vision for the future, and then the fiancés together can decide what is right for them.
Sometimes issues regarding finances and financial security can mean different things for different people, and each may have different fears or concerns. Having a neutral facilitator there (usually a mental health professional) can help us talk through these issues.
When addressing the issue of alimony/spousal support, sometimes it helps to have a financial professional look at the fiancés’ lifestyle and expenses, and prepare worksheets and projections showing the result in different scenarios for different amounts of assets and support to be received by one of the spouses, including projected returns from invested assets.
Conscious Contracting
An additional option, which isn’t mandatory, is that these agreements can actually be written in natural language, rather than the dense, long agreements with sometimes excessive amounts of legalese, which is often the norm. There is often the illusion that agreements written this way provide more certainty and enforceability, but litigation disputes often center around a court trying to interpret arcane, legal drafting. An agreement explaining in plain language what the fiancés want, along with the language describing what is important for them and why, can actually help with enforceability. It’s in some ways similar to how a court will sometimes look to “legislative intent” –- the explanation legislators or legislative committees provide along with legislation to explain what was intended and what everyone means. You can learn more about this approach to “conscious contracts“.
I’ve seen too many matters where a prenuptial agreement becomes a source of stress or distress, and am convinced that a collaborative approach is much better.