This blog post is from Aimee M. Pingenot, is a collaboratively trained attorney with the law firm of Goranson, Bain, Larsen, Greenwald, Maultsby & Murphy, PLLC, a full-service family law firm serving the Dallas-Fort Worth area, including Dallas, Collin, Denton and Tarrant counties.
In recent months, I had the opportunity to participate in the creation of two premarital agreements. Both agreements had striking similarities: the soon-to-be-husband in both cases was the older, high wage earner with substantial assets, who had been badly burned in litigation through his prior divorce and was not quick to repeat that experience, and the soon-to-be-wife was much younger, had no assets, and was scared to death of what the future held if their union ended in divorce. The difference between the two cases was that we used the traditional adversarial model of negotiation in one case and the collaborative approach in the other case.
The difference in results was striking. In the adversarial case, the clients left with a well-drafted agreement, but with all of the same feelings, concerns and doubts with which they entered the process. In the collaborative case, the parties left with a thorough agreement as well, but with a greater acceptance and appreciation of what they signed. In my opinion, the couple who used the collaborative model left the process on more equal footing to begin their marriage.
There are a multitude of reasons why the collaborative model is well-suited and appropriate for the drafting of premarital agreements. First, the collaborative model involves a mental health professional to guide the process. Understandably, a couple contemplating a premarital agreement is contemplating what happens at the end of a marriage and possibly at the end of their lives. Having a mental health professional in the process enables couples to openly discuss their fears, anger, and concerns about divorce or death in a supportive environment. I found that the couple that used the collaborative process to create their premarital agreement were able to move past many of their concerns once they felt safe and supported to say what was on their minds in the process as well as to ask questions of the other party to understand why the agreement was being drafted. I felt that this made the process far more positive and palatable as compared to the more adversarial model.
Utilizing a neutral financial professional also made a tremendous difference in the collaborative case. The non-monied spouse felt that she could ask the financial advisor questions about what assets were being disclosed and the veracity of the husband’s claims of separate property, as well as use that financial neutral to help her better understand and advocate for what she needed in the event of the divorce. The parties were also able to creatively design present day budgets as well as to plan how best to ensure a financially secure future for themselves as well as any future children. Utilizing the neutral financial professional sped up the process and decreased the cost as we were working as a team with one financial advisor, and looking for solutions for the couple, rather than looking for advantages for one party.
Most importantly, the process itself was ideal for the case. Each party had an opportunity to develop and share his or her goals at the beginning of the case. The couple discussed options and problem solved together to reach an amicable solution. They both were able to sign an agreement that they created together, rather than feeling forced to commit to something after rounds of negotiation, time, and expense, that neither felt truly comfortable signing. Premarital agreements will never be romantic, but by creating something together, the parties embark upon their life together as a team, and hopefully more likely to remain that way in the future.