An attorney friend of ours was recently engaged to be married. She’s had a thriving law practice for years, and she thought it would be prudent to have a prenuptial agreement to protect her law firm just in case there was ever marital discord in the future. Her husband-to-be had no problem with her keeping the law firm separate from any marital property and was fine for her to protect it in the event of divorce. Yet, when they got attorneys involved to help them negotiate and draft the agreement, it became so contentious that she began to wonder if the marriage should be called off. They ended up working it out, but they probably could have avoided this unhappy episode by using the collaborative law process to fashion their prenup.
The reality is that attorneys typically negotiate within an adversarial model. Even when parties are about to be married and are not contentious at all, the lawyer representing the party who wants a prenuptial agreement will typically prepare an agreement using language to protect their client without much thought to protecting the other spouse-to-be. It’s just how lawyers are trained. But in the tender time immediately preceding marriage vows, the agreement can be perceived as one-sided and comes as a shock to the other soon-to-be-spouse.
When that spouse takes the draft prenup to his or her own lawyer, the lawyers begin the process of offering proposals and counter-proposals to come to some middle ground. It can be disconcerting, to say the least, for folks making wedding preparations.
The collaborative law model, as the name implies, works to shift the attorneys out of the adversarial model. And even though the process of negotiating a prenuptial agreement can raise to the surface difficult things to talk about, these necessary conversations happen between the parties (with their attorneys), rather than between the attorneys (without the parties), and they are more likely to proceed calmly, peacefully, and with empathy and respect inside the “container” of the collaborative process. This is how collaborative attorneys are trained.
In the collaborative law process, each attorney is making sure that their client’s interests are protected in the negotiation and drafting of the prenuptial agreement, but the attorneys are working from the very beginning to find solutions that don’t feel one-sided to either party.
For more about the collaborative process in general click here.
