Collaborative Law and Pre-nuptial Agreements, by Jessica L. Ecker, Esq.
The typical or “old fashioned” way of preparing pre-nuptial agreements (or “pre-nups”) involved one party’s attorney drafting and sending it to the other attorney, who reviewed and discussed it with his or her client, and then sent a letter with revisions. The document continued to be volleyed back and forth until both attorneys found a document they believed their client could live with. This process was not efficient and often included many unintentional results. Attorneys, wanting to protect their clients, would include language which the client never mentioned, and perhaps never wanted within the document, which could lead to hurt feelings, misunderstanding, and stress.
Some of the basic tenets of collaborative law match perfectly with pre-nuptial drafting and agreements—there is no option for litigation with a pre-nuptial (performed before the marriage and must be entered into voluntarily), and both processes require a full, voluntary financial disclosure. The preparation of pre-nuptials can often be difficult and emotional, and it occurs at what is often a stressful time in the couple’s life—they are trying to plan a wedding and make family and friends happy. Pre-nuptials can cause a couple to face difficult decisions, which can lead to tension and conflict.
The collaborative process is perfect for pre-nuptials. The couple can meet with collaboratively trained professionals to help them have these challenging discussions about finances and “what if” we divorce questions productively. If there are emotional blocks to settlement, a coach or mental health professional can assist. If there are complex financial considerations, a financial professional can be used. Most importantly, the parties can avoid the back and forth miscommunications by doing a pre-nuptial the “old fashioned” way.