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Extended Consultation Description
Mediation Service What Mediation is Collaborative Practice
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Using Mediation to Facilitate Design and Creation of Prenuptial Agreements The only people in California who understand their own Marital Deal are those who have had the wisdom and courage to take the time and energy necessary to fashion their own Marital Deal before the wedding.1 The legal form of the Marital Deal is the Prenuptial Agreement. 2 Lawyers have not had good luck in attempting to negotiate prenuptial agreements on behalf of clients. We have no transactional models to follow or learn from.3 A Prenuptial Agreement is similar to an Agreement to Lease a Commercial Building on only on abstract levels. A prenuptial agreement is an intensely personal transaction that must be created by the couple themselves. Yet, they have no models to follow. For the last several years I’ve had reasonable success in helping couples to develop Prenuptial Agreements specifically to their specific needs and expectations. While I borrow heavily from what I know about conventional negotiation and mediation, work on a Prenuptial Agreement is fundamentally different than either. Mediation presupposed the existence of some sort of dispute or conflict. Negotiation presupposes the existence of recognized and competing interests. Such situations rarely exist for a couple about to get married. I call the work I do with the couple "facilitation." To improve the chances for reaching a solid and mutually acceptable agreement, I will work only with couples able to agree to and meet the following conditions: 1. There must be full financial disclosure by both parties. This will require at a minimum the completion of financial statements and the exchange of recent tax returns, which will be attached to the final agreement as exhibits relied upon by the parties in reaching their agreement. 2. There must be at least three months between the beginning of our work and a wedding date. There is an understanding at the outset that the imminence of the wedding will not be allowed to pressure agreement. If either or both parties insist on a PNA prior to the wedding, no wedding date should be set until agreement has been reached. 3. The parties must understand that if serious interpersonal issues arise I will make a referral to a marriage and family counselor. When making such a referral I’m careful to recommend counselors who are comfortable talking about and dealing with financial issues. 4. Both parties must have the agreement reviewed and approved by independent counsel. I use very specific endorsements for the reviewing attorneys which describe with some precision what they have done and what they have not done. These endorsements are explained to the couple early in the process. Facilitating the creation of a Prenuptial Agreement can be both exciting and enjoyable. It is always challenging. I bill all time spent on the case in quarter hour increments at my standard rate. In some cases I require a "replenishable" retainer; in others I ask for payment at the end of each session and at the completion of each draft. _____________________________ 1 In 1850 the first California legislature established marital property law in accord with Spanish and Mexican concepts of community property. Since divorce was not recognized in either Spain or Mexico, community property evolved as a set of rules to determine how property was used during marriage and what would happen to it at death. At the same time the legislature adopted Anglo-American laws permitting divorce. Thus, the California marital property rules have been jury-rigged since inception. In 1970 California became the first state in the Union to adopt "no-fault divorce." Until then marriage was seen as a legal contract whose terms were the traditional marital vows of "mutual respect, fidelity, and support." If a spouse violated one of those vows the other could ask a court to determine that the contract had been broken and to "award damages." The court’s award of "damages" to the innocent spouse could take the from of an unequal division of the marital property and an award of "alimony." The 1970 no-fault also eliminated an unequal division of marital property as a way to compensate the innocent spouse. The term "spousal support" was substituted for "alimony;" we are still trying to determine what difference it makes in practice. In 1980 California became the first recognize the concept of "joint custody" of children after a divorce. The legislature later distinguished between "physical custody" and "legal custody." In recent appellate decisions, the courts have suggested that what the parties or the legislature call a particular arrangement may be irrelevant to the outcome of a particular case. For the last thirty years, California Family Law has developed, evolved and possibly devolved at an astonishing rate. A couple married before 1970 knew what their marriage meant. It centered on the traditional marital vows and there were enormous and adverse consequences for those who violated those vows. The laws of the state were highly syntonic with the expectations of its adult population. Since 1970 the legislature and the courts have made core changes to the Marital Deal on a monthly, and sometimes a daily basis. 2 On review of a Prenuptial Agreement at the time of divorce, a court is more likely to disregard some or all of the terms of a Prenuptial Agreement than is the case with other contracts. This fact alone presents a challenge to the couple and to their attorneys. On the other hand, a couple may decide it doesn’t need a Prenuptial Agreement, and this could be a very positive conclusion to their effort. I think that any discussion about the reasonably possible eventualities is better than none, regardless of whether it leads to a formal agreement. Many of the true legal problems on divorce arise over issues about which the parties never articulated their expectations, if any. 3 In England and many European countries the arrangement of the economic terms of a marriage by trusted and well-known lawyers for affluent families is a common and accepted part of the business of "getting married." Not many American families have a "trusted lawyer" who has been with the family during difficult events and transitions and who has an innate sense of how the interests of the family and its individual members align and diverge. |
Copyright 2003 Brian H. Burke