Getting on the same page

One of the standard practices in a collaborative case is to use part of the first session to read the collaborative agreement out loud before the parties sign it. This strikes some people as a bit old-fashioned in the digital age but, given the importance of this agreement in making collaborative work, it's really pays to have everyone on the same page. My experience is that people often don't read an agreement through before they sign it, even if they think they did. But it is absolutely crucial for each party to be aware of what they are agreeing to do because if the collaborative attempt fails, the divorcing parties have to go back to square one with a new set of attorneys.

I had a client recently, for example, who balked at taking the time to read through the six-page document. He'd read it, he said, and was ready to sign. But we insisted and as we were reading through it he was quite surprised to find out he would be obliged to disclose certain types of information. Hearing it put like this, he decided maybe collaborative wasn't for him, after all. How much better to come to that realization in the half an hour or so it takes to go through the agreement rather than spending the time and money on hours of collaborative discussion only to have it fall apart when the disclosure is actually requested.

Collaborative is a new type of procedure for alternative dispute resolution, with a different set of rules. It is a procedure based on openness and communication. It just makes a lot of sense to begin that process by getting everyone, literally, on the same page.

Workshop

I had the opportunity last week to attend what may be the best professional workshop I've ever taken part in. It was a three-day seminar in Advanced Collaborative Practice taught by Pauline Tesler and her colleague David Fink.

First of all, Pauline, who practices in northern California, is the guru for collaborative law. In terms of the depth and commitment she brings to it, she is just the best. Second, this workshop at University of Maryland Law School in Baltimore had a limited group of just 15 people, including seven of us from the DC practice group, so the sessions were tailored to our specific needs and were enormously beneficial for that reason.

This is not the place to go into detail about the actual workshop. It was mostly techniques and role-playing, so difficult to describe anyway. In essence it was about being able to understand better what your client is saying, and to help the client understand what they want. Because most of us taking part already had a lot of experience in collaborative, it was particularly helpful for us in taking our practice to the next level.

My other takeaway was that I'm more convinced than ever that collaborative really is the way to go for most divorce cases, and it encourages me make that case with new clients who are amenable to it.

Prenups

I've been getting a steady stream of clients seeking prenuptial agreements, which is good because it means people are finally catching on that prenups are not just for rich people.

There are, in fact, a number of situations where a prenup might be desirable. A prenup is not a bet against a marriage – it is simply part of prudent planning, because no one knows what the future holds. It is easier to make decisions when romance is still in full bloom and so forestall long court battles if things do turn sour. Often, having an honest discussion about financial and other matters before marriage can strengthen the commitment of the partners.

Some of the major issues that can be covered in a prenup are splitting assets – the classic case of what is held outside marital assets; who pays off what debt – especially relevant in this age when school debt can run into tens of thousands of dollars; one partner makes significantly more than the other; financial support for a spouse who gives up a career to care for the children, or any agreement on settlement or alimony. When there are children from a previous marriage, a prenup can be desirable to protect their inheritance.

There are also a range of minor issues like keeping certain items, such as heirlooms or other favored possessions, even a pet; dividing a home fairly – particularly if one partner’s existing residence becomes the family home;  or how long a spouse or kids can remain in the home after a divorce.

There is also something called a “postnup,” though some things can be more difficult to discuss after you’re married.  A postnup might be desirable if a spouse starts a new business with outside partners, or to clarify ownership if one spouse acquires property with pre-existing assets. 

Sometimes it is just one of the partners who is eager to get a prenup. The other partner in this case should not just go along and sign whatever is put in front of them, however. It is always a good idea to have your own attorney review the agreement. This usually doesn't take long and does not need to cost a lot of money, but you don't want to sign away claims that the law might give to you if it does eventually come to divorce.