An attorney colleague had a thriving law practice for years, recently got engaged, and thought it would be wise to have a prenuptial agreement to protect her law firm just in case of problems down the road. Her fiancé had no problem with her keeping the law firm as separate property.
Yet, as divorce attorneys sometimes do, they created unneeded conflict for my colleague and her fiancé, almost resulting in a breakup. Thankfully, my friend and her fiancé were able to rise above the attorneys’ contention but could have likely avoided this drama if they had used the collaborative process to draft their prenup. This is why.
The Collaborative Process: An Overview
Collaborative law was the brainchild of Minneapolis family law attorney Stuart Webb. In 1989, he devised the method out of frustration about how the family court system harmed families more than the divorce itself. Today, collaborative law is an area of law practiced worldwide, and not just in the area of family law.
The process is one form of alternative dispute resolution reached outside the confines of the courtroom. What distinguishes it from other forms of alternative dispute resolution, despite the common goal of seeking mutually acceptable solutions for both parties, is that in the collaborative process, the approach is team-based, meaning everyone is essentially on the same team.
The result is more amicable discussions than typical of more adversarial formats where lawyers pit one client against the other. Clients who resolve their issues in court often find this to be the situation.
Those involved in the collaborative process pledge the following:
- They promise to be respectful to each other during all interactions
- They make a good-faith promise to disclose all information relevant to the matter.
- They promise to reach an agreement without a judge intervening.
- They promise not to threaten court action.
- They agree that if the collaborative process breaks down for whatever reason and a judge becomes necessary for resolving any disputes, both attorneys will withdraw from the case.
- They agree that a record of all communication and any documents prepared in conjunction with the collaborative process will be admissible in court should the need arise.
The Role of the Collaborative Attorney to Resolve Disagreements
A collaborative attorney is an attorney professionally trained in the collaborative process. First and foremost, this involves approaching any matter, including a divorce, they are involved with using a non-adversarial approach.
This involves:
- Committing to not engaging in adversarial tactics.
- Assisting the clients with identifying their needs and short- and long-term goals as they apply to the matter.
- Coming up with new solutions they may not have thought of before to help them reach an agreement.
- Working with the other collaborative lawyer and collaborative professionals on the case to reach an agreement that supports the well-being of the entire family.
- Explaining to their clients in lay language what is going on in their case because the decisions they make during the collaborative process are binding as they are in a court proceeding.
- Preparing and filing with the court all documents created in support of any agreement reached during the collaborative process.
The Way the Collaborative Process Works for the Resolution of Disputes
The underlying goal of the collaborative process is to reach outcomes that meet the needs of both parties and the entire family. It helps ward against the random and unknown decisions that can arise from court litigation, where a judge holds all of the decision-making power and has limited time to assess the case. With the collaborative process, settlement is the goal, not litigation, and, therefore, aims to keep discussions non-adversarial.
More specifically, the collaborative process aids couples in defining their wants and needs for themselves and their family and helps them reach a settlement that includes the most important of these so that each party walks away with a resolution that they find acceptable. The collaborative process also seeks to educate parties about what skills will serve them in post-divorce life as they co-parent together. Among the most important are communication skills and skills to aid in conflict resolution.
In addition to a collaboratively trained attorney, a collaborative team can include financial and mental health professionals. Your collaborative lawyer can advise you about which professionals in their network will be best suited for your case.
Typical Prenup Negotiations Using an Adversarial Model
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 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 special 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 the fiancé takes that draft of the prenup to their own lawyer, the lawyers begin the process of offering proposals and counter-proposals to come to some middle ground. It can be upsetting, to say the least, for a couple in the midst of wedding preparations.
How the Collaborative Process Can Help Prenup Negotiations
The collaborative law model, as the name implies, works to shift the attorneys out of an adversarial model. Even though the process of negotiating a prenuptial agreement can bring to the surface issues that are difficult to talk about, such as feelings around money, earnings, and money management, these necessary conversations happen between the parties with their attorneys present rather than between the attorneys without the parties there. The result is these conversations 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’s goal is to protect their client’s interests during the negotiation and drafting of the prenuptial agreement. However, the attorneys are working from the very beginning to find solutions that don’t feel one-sided to either party and, in fact, aren’t one-sided. The idea is that an agreement reached after both clients feel “heard” is much more likely to be a durable agreement.
Find a Seattle Family Law Attorney Trained in Collaborative Law
At Elise Buie Family Law, we have seen firsthand how a prenuptial agreement can set the stage for a strong marriage.
Moreover, when couples approach their negotiations with collaboratively trained family lawyers by their side, discussions tend to run smoother, with each party walking away feeling they have an agreement that serves them.
If you would like to learn more about how the collaborative process can help you with your prenuptial agreement, or you would like to learn more about prenuptial agreements in general, call our Seattle office today. We have collaboratively trained family law attorneys on our team who can address any issues, questions, or concerns you may have about whether a prenuptial agreement using the collaborative process is right for you. Call us today.
