Bar News - October 15, 2014
Alternative Dispute Resolution: Happily Ever After: Marrying Prenuptial Practice and Collaborative Law
By: Jessica L. Ecker & Kimberly A. Weibrecht
The traditional method of prenuptial drafting and negotiation is the age-old story: One party (usually the higher asset party) hires a well-meaning attorney who drafts a complex and dense document with the intention of protecting his or her client.
The document, which likely includes many provisions the client does not understand and protections he or she did not specifically request, is then shared with the other party’s attorney. That party’s attorney goes through the agreement and attempts to explain all of the provisions to the client. Questions about rationale inevitably arise, and answers are provided based on a process that resembles an old-fashioned game of telephone in which the second attorney is sharing what he or she understands from the first attorney about what he or she understood about the wishes of the other party.
Then there’s the equally cumbersome process that occurs when the attorneys are negotiating with each other, only to also have the couple – who are likely in daily contact, if not cohabitating – also negotiating directly with each other. Communications occur within the various configurations that are not necessarily aligned.
Both of these scenarios can lead to conflict, confusion, inefficiency and hurt feelings, which often occur in the midst of the flurry of wedding plans and family obligations as they approach the wedding day.
Why Collaborative Law?
Collaborative Law is a method of conflict-resolution or problem-solving that is gaining momentum in New Hampshire, across the country, and throughout the world. A team-based, client-driven approach, it is most attractive to parties who have a strong interest in preserving an ongoing relationship, such as parties in a commercial dispute who will have a future business relationship; families grappling with probate matters; or couples going through a divorce, particularly with children.
The primary tenets of Collaborative Law lend themselves very well to the practice of prenuptial negotiation and drafting. Collaborative Law focuses on interest-based negotiation rather than gamesmanship. It involves communication between the professionals and parties that is transparent, collaborative, and productive, all of which adds to efficiency and reduces confusion and misunderstanding.
Really, in what setting is the principle of doing no harm to the existing relationship more important than with couples about to marry?
There often are a lot of emotions wrapped up in the negotiations of a prenuptial agreement. People who have assets to protect or family money may feel pressure from family members to get a prenuptial agreement. People who don’t may feel inadequate or embarrassed. The negotiations typically force people to have discussions about money and expectations that can be uncomfortable.
For those entering into a second or third marriage, past bad divorces may result in them being re-traumatized by the prospect of another marriage coming to an end. Parties may have adult children and inheritances they wish to protect. The very real fear also exists that if things do not go well in prenuptial negotiation, the engagement may end and they could have to call off the wedding.
Any prenuptial process must involve full financial disclosure, which can be difficult and complex. There can be numerous and partial trust assets, business interests, and other assets, which are hard to clearly identify or value. Sometimes one party is much more sophisticated when it comes to knowledge of finances, and the other party needs additional assistance to understand what the finances mean, and what the proposed agreement means under a variety of circumstances.
All of these questions, concerns and fears, along with the timing of this occurring so close in time to the wedding makes the Collaborative process all the more appropriate.
The Collaborative Process
In a Collaborative prenuptial negotiation, the parties both engage trained Collaborative Law practitioners who are skilled in prenuptial preparation. The parties and counsel meet at one or more four-way sessions to discuss the goals, needs and feelings of each party.
With the assistance of the professionals, the parties can have open and frank discussions about financial goals prior to the marriage, ensuring that everyone is on the same page with how the finances of the couple will work following the marriage. These issues can be discussed before the marriage in a structured dialogue, to avoid misunderstanding or miscommunication down the road.
To the extent it may be necessary, the team could expand to include Collaboratively-trained coaches (mental health professionals) who could assist with any emotional roadblocks to settlement, or financial professionals, who could assist in facilitating the financial disclosure, performing financial calculations and projections for various scenarios, or by providing financial education.
By marrying the prenuptial process with Collaborative Law, the often difficult task of negotiating a prenuptial agreement can be transformed into a positive. Parties gain the ability to engage in effective and safe communication about difficult financial issues with the assistance of qualified professionals. These professionals can advise the couple about their legal rights and assist them in effectively addressing any potential conflict in a productive manner.
An agreement crafted through the Collaborative Law process often results in a more responsive and durable agreement, which caters to the individual needs and desires of the parties by inviting and guiding them to come up with creative solutions to their unique concerns.
Reframing the betrothed as members of a team, rather than adversaries, will assist them in their quest to live “happily ever after.”
|Kimberly A. Weibrecht
Kimberly Weibrecht is a partner and Jessica Ecker is an attorney with the firm of Weibrecht & Reis. Both focus their practices on family law and are Certified Marital Mediators and trained Collaborative Law practitioners.