The Collaborative Process and Premarital/Postmarital Agreements
What is a Premarital Agreement?
A Premarital Agreement, sometimes called a Prenuptial Agreement, is a set of rules created by an engaged couple to govern their financial lives during their marriage and to determine what will happen in terms of property division and spousal support if they should divorce. They believe that they can create their own rules to fit their unique situation, rules that will be preferable than those imposed by California family law.
What is a Postmarital Agreement?
A Postmarital Agreement, sometimes called a Postnuptial Agreement, is a set of rules created by a couple during their marriage for much the same reasons that an engaged couple creates a premarital agreement: to govern their financial lives during their marriage and to determine what will happen in terms of property division and spousal support if they should divorce. They also believe that they can create their own rules to fit their unique situation, rules that will be preferable than those imposed by California family law.
Why Have One?
There are many important and legitimate reasons why some couples choose to enter into Premarital Agreements. One of the spouses may be part of a family business, which needs to stay uncomplicated and separately owned and managed. The couple may be moving into a home owned by one of the spouses, who wishes to protect his or her separate interests in the property. One of the spouses may have gone through an extremely prolonged, costly and painful divorce, and wishes to create clear “divorce rules” to avoid the potential for a repeat of this difficult experience. Some couples simply want to carefully plan for their financial future, and wish to have their own set of rules that suit them better than those imposed by existing family law statutes. Some couples are very happy with California family law, but may contemplate moving to another state and wish to adopt California rules as their own regardless of where they reside.
As to postmarital agreements, sometimes there is not enough time before the wedding to create a premarital agreement, so the couple waits until the flurry of wedding activity has died down and works on the agreement after their marriage takes place. Sometimes things happen that change a couple’s finances during their marriage; for example, one spouse may wish to protect his or her newly inherited separate property or one spouse seeks to be protected from the other spouse’s debt. Because there may be differences in the enforceability of premarital agreements vs. postmarital agreements, it is a good idea to get legal advice if time permits before choosing one method over the other.
Traditionally, the request from one of the spouses or intended spouses for a “PMA” was the beginning of a painful process that often drove a wedge between two people who were supposed to love each other. It was handled only by the lawyers, and the process began with what was usually an extremely one-sided draft being presented by the requesting fiancé or spouse as a fait accompli to his or her fiancé or spouse. The lawyers then exchanged and battled over drafts of the “Agreement” creating a “we-they” situation that felt adversarial and threatening, building mistrust and disharmony in an otherwise secure marriage, or on the eve of what was supposed to be the happiest day of parties’ lives. Often, the spouse asked to sign a PMA felt that the PMA was being forced on him or her and felt mistrusted, unprotected and uncared for by the other spouse. The spouse requesting the PMA then interpreted the reluctant spouse’s objections as being greedy and selfish.
The collaborative process is tailor-made for drafting PMAs, as collaborative attorneys are trained in mediation and interest-based collaborative negotiation that takes both parties concerns and goals into account. It is also well-suited in that the agreement is drafted together, more as a planning process than an adversarial one.
What Does the Process Look Like?
Before a first draft is created, both parties are provided with their “default” PMA, which sets out the rules that would apply if they did not enter into a PMA (California Family Law). Each party retains a collaborative attorney, and the parties and attorneys meet together to discuss which of these rules the couples wish to modify in order to respect the following principles:
- Each person’s goals for the marriage
- Each person’s goals for himself or herself
- Each person’s goals for the other person
- Each person’s concerns giving rise to his or her belief that a PMA is needed
- Each person’s concerns about the consequences of a PMA in terms of his or her own need for security and being cared for by the other person.
The attorneys draft the PMA based on their discussions with the engaged couple, and jointly present the first draft to the parties for their review and comments. Once the couple has provided their input, the Agreement is finalized.
What About the Rest of the Team?
In a collaborative premarital agreement process, adding professionals other than the lawyers to the team can enhance the process and strengthen the relationship. Working with a financial professional can help the couple understand their finances and make better plans and rules to live by – and also take the fear out of the commitment they are making and the Agreement they are drafting. Working with mental health professionals in the process can prepare the couple for healthier negotiations and for their new life together, particularly when they are blending families and working with difficult emotional issues in the drafting of the PMA.
If you and your fiancé believe that you might want to create a Premarital Agreement, the collaborative professionals of Collaborative Practice San Francisco are trained to make this a productive and positive process. To learn more, contact any of our professionals, all of whom would be pleased to discuss the process and how it could best work for the two of you.