Preparation of a Prenuptial Agreement should not be adversarial, but all too often it becomes just that. Some attorneys view their role in this process as preparing an initial draft of a contract that asks for much more than their client really wants or expects, but believes this is a better way to begin the "negotiations." Or, when a party first meets with the attorney, the attorney raises issues the parties may never have thought of and then includes in the Agreement provisions with resolution of those never-before addressed issues. When the other party receives that "first draft," he or she is hurt and dismayed that their soon to be spouse really expects or wants these particular provisions included. Often the parties do not sit down together with their attorneys until they are ready to sign the Agreement and the cost from the inordinate amount of time redrafting, editing, and negotiating has skyrocketed. I have seen couples either split up due to this type of handling of the process or, even though final agreement is reached, harbor bad feelings towards each other that are clearly not conducive to a harmonious marriage.
By contrast, the process of working on a Prenuptial Agreement collaboratively is an opportunity for open communication between the parties. It requires a critical examination of sensitive issues, like children and finances, and working out resolutions that are acceptable to both. It precipitates openness because both parties must make full disclosure. The issues will be addressed at some point and it is much better to do so in a setting more conducive to amicable resolution. Some have said that it actually provides a "structure" for premarital financial planning. When a client consults with me about a Prenuptial Agreement, I provide a list of items that most Agreements address and resources to use as references. After each party has retained an attorney and had time to discuss and review the materials, we have our first 4-way meeting. We start the process addressing the issues that the parties can agree on and work from there. At that time we also identify issues either that can not be agreed upon in the initial meeting or require more information. Whatever resources are needed can be made available for the parties and can be identified in the 4-way meetings.
The importance of drafting an Agreement collaboratively is that every step of the way the attorneys can ensure that both parties understand the provisions in the Agreement the same way. Questions are raised immediately and issues identified quickly. It is a joint process and each party is an active participant the process. Starting out with the premise that the Agreement is a positive thing, that it encourages openness and honesty, and that it is based on trust, given there will be full financial disclosure, is a way to start a marriage on stable footing. While the process can be difficult, I have had many couples come back and tell me that they are so happy that they began discussions of finances before marriage, and that they truly believe that going through this process enhanced their marriage.