Sunday, December 20, 2020

Prenuptial Agreements and Collaborative Practice

Any overture by a journalist interested in writing about divorce can be an opportunity to educate the community about the many advantages offered by collaborative practice.

Here, for instance, is a sidebar about prenuptial agreements just published in the "weddings" issue of the glossy lifestyle magazine distributed widely in Marin County (California), where I live and practice.

Collaborative Practice is a conflict resolution modality whose essence is the out-of-court resolution of disputes that otherwise would be handed over to judges or other third-party decision-makers. But the techniques we bring to that conflict resolution work can be useful in family transactional work as well.

We know that for collaborative conflict resolution to work, the parties must share a commitment to maintaining some kind of functional ongoing relationship that is at least as important to them as the immediate divorce-related issues. Certainly the parties to a prenuptial agreement have plenty of commitment to an ongoing relationship which is, one hopes, at least as important to them as the financial matters being addressed in the prenuptial process.

By coincidence, this "sidebar" opportunity arose while I was handling a disturbing prenuptial negotiation that nearly destroyed the ability of the couple to trust one another. The wealthier party, who happened to be female, was represented in the prenuptial negotiations by a large international law firm that handles her substantial investments and business interests. This firm also handles prenuptial agreements for its wealthy clients, but does no other family law work, and for them, a prenuptial agreement is just another wealth protection opportunity.

When I proposed that the firm associate collaborative counsel and that the negotiations be handled face to face with the support of collaborative coaches, the response was, "we don't allow our clients to participate face to face in prenuptial negotiations, because they give away too much."

The wedding will take place later this month, but the terms of the prenup are onerous--the kind of terms that divorce lawyers know will fester and breed resentment over time. The best that I can hope for is that this young couple will recover from this "assault by legal counsel" and that after a few years, the wife will realize the best place for this prenup is in San Francisco's mandatory sidewalk compost bins. At least they both know about collaborative team practice. Perhaps at that point they'll work with a team to renegotiate a more constructive financial foundation for their marriage.

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