Christopher Michael Farish is a collaboratively trained family law attorney who works as an associate at the firm of Quaid & Quaid, LLC. Chris is a past three-term president of the Collaborative Professionals of Dallas, the President of the Collin County Young Lawyers Association, and has served on special committees for CLI-TX and IACP.
Some of you may have seen this article on Reuters.com a couple of weeks ago. Essentially, the government in Mexico City is considering a law allowing couples to receive an expiring marriage contract. The concept is that since approximately half of the marriages in Mexico City end in divorce and last less than two years, why not offer a marriage contract that expires without the need for divorce? The minimum term would be two years, which the couple could extend if the marriage was going well, and the contract would provide for the division of property and how to handle the children, if the contract were allowed to expire. If the contract expires, the couple is no longer married and they simply move on their separate ways without having to go through the difficult divorce process.
Does this sound familiar? This reminds me of pre-nuptial agreements – or, at least, the intent behind a pre-marital agreement. I also believe this is an area that we may be under-utilizing in Collaborative Law. We all recognize the benefits of Collaborative Divorce in terms of decreasing the animosity inherent in divorce litigation, but how many of us are actively seeking to expand our Collaborative Marriage Planning business? Many of us draft premarital agreements, and we have all seen the ugliness that can surround the formation of the agreement, and the even uglier side of litigation intent on destroying the agreement upon divorce. So, why aren’t more of us extolling the benefits of collaboration in formation of these agreements?
Interest-based negotiation could be wonderfully utilized to set out future individual goals and concerns, and then goals and concerns related to children could be discussed at length as well. Our even-tempered and wonderful collaborative mental health professionals would be in the room to help control the inevitable emotions swirling while discussing these future goals and to facilitate interest based communication. Our knowledgeable and trustworthy financial professionals would be present to help everyone understand the future value of these assets, the possible financial needs of the children, and to generally make sure the greed is tempered with information. We could weave a fabric of understanding and mutual respect in the process, as well as a mutuality of input so rarely found in a standard pre-marital agreement negotiation.
I always discuss Collaborative Law with my pre-marital agreement clients, and suggest they discuss the process with their future spouse, and if they can agree, they include a provision requiring they use Collaborative Law in any future divorce action. If that same couple had already collaborated on the formation of the contract, the Collaborative Law provision would have added teeth, if challenged, because there would be no question of their understanding of the process at the time of entering the agreement. I realize this would require our clients to consider their need for a pre-marital agreement at some point prior to the week before the scheduled wedding date, and also be willing to sit down and dedicate some time and effort to the process. However, with enough success stories related to Collaborative Law easing an incredibly difficult contract negotiation in this area, I believe the practice could easily expand rapidly in that direction.
Many of you are already utilizing this idea in your own practice, but for those who are not, I suggest considering it as a way to achieve a stable, well-reasoned agreement that protects the privacy and dignity of both parties.