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Communication

The Collaborative Premarital Agreement Process – A Better Way to Start a Marriage

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As more and more couples are waiting longer to marry, California lawyers are seeing an increase in requests for Premarital (also called Prenuptial) Agreements. By the time they get married, many people already have assets, such as retirement accounts and real property, and some even have children from a prior relationship. During the COVID19 pandemic, many people experienced the downsides of not having a premarital agreement and/or updated estate plan; with the loss of remarried loved ones, they also lost their family legacy to a stepparent or step grandparent. In one case, mom passed away quickly and, having no “prenup” or estate plan, stepdad, by default, got mom’s premarital assets. Result? Her two adult sons (who did not get along with stepdad) were given a couple of jet skis and were told to go away. Stepdad kept the family home, mom’s car, bank accounts, and personal belongings. You never think it will happen to you, until it does.

Despite its negative reputation, prenups can be an opportunity to plan for a successful marriage, to have a voice in the management of separate property assets during the marriage and to create a joint plan for separate and community property assets in the event either spouse predeceases the other as well as in the event of separation or divorce.

The word “prenup” can be a trigger given the “traditional” process: two lawyers, each in private session with their client, the first drafting a proposed agreement that strongly favors her client (who likely has more money and assets than the other party), the second receiving the draft agreement, explaining to his client how grossly unfair it is to her, and editing the agreement in favor of his client. This continues back and forth until the attorneys confirm that their clients have approved a final draft. The experience can be so negative, that the relationship is harmed rather than strengthened.

This process feels adversarial for a couple of reasons. First, the negotiations start from a competitive position, in favor of the initiating party. The receiving party then mirrors that behavior, given how outrageously unfair the first draft was. And they continue until they find a middle ground. While less extreme than the initial draft, there often remain provisions that leave one party feeling insulted or hurt.

Second, direct communication between the couple rarely happens and is typically not productive. Given how uncomfortable many couples are in talking about things like money, they will avoid direct discussions and only speak on such topics through their lawyers. Not only does this set a poor model for communication and problem-solving during the marriage, it’s also a time-consuming and expensive way to create the agreement itself.

Enter the Collaborative Premarital Agreement Process, which looks something like this:

Premarital Agreement Process

Sam calls lawyer Diana for a prenup. Diana tells Sam it’s important for fiancée Jo to have a lawyer as well, and that Jo may want to look into finding a collaborative lawyer. Diana sends Sam some information on the collaborative process, and they schedule their first meeting. If Jo hasn’t yet retained a lawyer, Jo is invited to that meeting. The first meeting is limited to discussing the process options – the actual negotiation of the agreement will take place only when Jo has retained a lawyer. If Jo already has a lawyer, both lawyers will meet to create the process for collaborative discussions.

Diana (and Jo’s collaborative lawyer if already retained) will jointly explain the collaborative process to co-create the Premarital agreement, which includes:

  • Jo and Sam meeting with both collaborative lawyers individually and in 4-way meetings. Often, a neutral family specialist (a therapist) and/or a neutral financial professional is/are brought in as well. This is a client-driven process, with the collaborative professionals helping the couple co-create an agreement that meets their individual and shared interests and goals.
  • Sam and Jo exchanging full financial disclosures with each other. Full financial disclosure is required for all premarital agreements to ensure that both parties are making informed decisions. This is key to an enforceable agreement.
  • The collaborative professionals guiding the couple through productive and respectful discussions, making sure that neither feels pressured. Another key piece that judges look for when enforcing prenups is the validity of the agreement which depends, in large part, on the voluntary and informed participation of each party. That means that neither was coerced, under duress, or mis-informed; that both had the time, space, and information to calmly review and understand each part of the agreement.
  • The collaborative professionals facilitating the discussions to help the couple build the financial foundation of their marriage. The focus is the relationship and future health of their family.
  • The couple speaking individually and confidentially with their individual collaborative lawyers AND with each other directly, with the support of their collaborative professionals.
  • The collaborative lawyers jointly drafting the Premarital Agreement for the couple to review. There may additional revisions as well as meetings to go over the agreement as needed, and then the signing ceremony with everyone present (or not – it’s really up to the couple).

How is this a better way to start a marriage?

  1. Collaboration. Working together creates an environment where everyone supports shared goals and understanding. There is no unknown lawyer promoting an extreme position.
  2. Direct Communication. Productive direct communication results in stronger and more complete solutions and reduces legal fees by eliminating the time it takes for party A to communicate to his attorney who then communicates to party B’s attorney who then communicates to party B and reverse for the response.
  3. Interest-Based Discussions. Where the traditional approach is position-driven (my house stays my house no matter what), the collaborative approach focuses on interests. For example, I want us to share my house during our marriage and preserve it as a legacy for my children. The couple in the collaborative model are encouraged to discuss both non-financial interests as well as their financial interests. The resulting agreements are more likely to satisfy the interests of both and create a foundation for a long and happy marriage.

There is no one-size-fits-all when it comes to creating your premarital agreement. The collaborative process strives to create a more productive and inclusive model than the traditional adversarial process of one-sided bargaining. The collaborative process can be tailored to the needs of the specific couple and can be started individually with the family specialist and/or each person’s collaborative lawyer to work through hidden interest and how best to present them. This process also sets the framework for working through difficult discussions moving forward, thereby setting a foundation for a successful marriage.

13 Tips for Talking with Your Children About Your Separation and Divorce

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by Carol R. Hughes, Ph.D., LMFT
www.DivorcePeacemaking.com

The following tips will help you prepare to talk with your children about your separation and divorce. You care about doing the best you can for your children because you are reading this article. Give yourself permission not to be perfect. No one is. This is a stressful time for all of you. Remember to keep taking slow, deep breaths — you and your children will get through this difficult time.

  1. Agree on a time when you both can be present to talk with your children together. Siblings need the support they can provide each other. Divorce is a major life crisis for all family members. Treat it as such. Ideally, it is best to share the news with your children when they have adequate time to absorb what you will be telling them, for example, when they do not have to go back to school in a day or two after hearing the news.
  2. Plan your presentation to your children in advance. Make some notes about what you plan to say and review them to be familiar with what you intend to say. Anticipate what they may say to you. You can have the notes in front of you if you wish and say, “We have made some notes because what we are going to be talking about is very important for all of us, and we don’t want to forget anything.” Remember that your children will likely be in emotional shock after you tell them your intentions to end your marriage, and they will not be able to absorb everything you say this first time. Be prepared to have the same conversation with them numerous times. Their shock and grieving will interfere with them being able to take in all you are sharing.
  3. First, tell your children that you love them very much, that you will always love them and always be their parents. Assure them that they will continue to have both parents’ emotional support and love in the newly restructured family.
  4. Tell them that the two of you have decided not to be married anymore and live in different homes because you have adult problems between you that you have tried to solve but haven’t been able to. Avoid using the word “divorce” because it is laden with negative connotations. Assure your children that this is NOT THEIR FAULT. Children often automatically assume it IS their fault.
  5. Avoid saying that you don’t love each other anymore. Children then think that their parents could also stop loving them one day, which could unsettle them and the stable foundation of having two loving parents.
  6. Avoid blaming each other. Now is the time for the two of you to have a united front with your children. Remember that this news will shatter their view of their family as they have known it. Blaming each other puts them in the middle of your pain and conflict, causes them to experience divided loyalty, feel that they need to choose sides, and feel guilty for loving both of you. Children often report that they hated being put in this position and feeling that each parent attempted to form an alliance with them against the other parent.
  7. Next, tell them what is going to remain the same. Tell them that you are all still family, that you will always be their parents, and that you will always love them. Tell them you intend to be friendly so that you can both attend their activities and family gatherings and not create tension for them, for other family members, or their friends. Tell them if one of you intends to stay in the family home if you know this. Assure them that they will be remaining in their same schools, same activities, etc., if this is true. If you don’t yet know all that will remain the same, it is ok to tell them that. Assure them that you will tell them when you do know more about what will stay the same.
  8. Next, tell them what is not going to remain the same. Tell them if you both will be moving into new homes and, at the appropriate time, that they can be involved in seeing the new homes or looking for them with you after you have narrowed your choices down to two options. It’s important to be neutral and factual. Resist being a victim or a martyr. It will only make them feel guilty.
  9. If they ask you a question you don’t know the answer to yet, for example, “Will we stay in this house?” it’s ok to tell them you don’t know the answer to that question, and when you do, you will tell them.
  10. Remember that you are still their parents. It is your job to put their feelings above yours and provide them with the support they need to hear, feel, and understand what you share with them. Acknowledge that you realize the announcement is a shock and that their feelings (anger, sadness, grief, shock, etc.) are ok. Focus on and be empathetic with THEIR feelings. Don’t talk about YOUR feelings, e.g., how you haven’t been happy for years, how you deserve to be happy, etc. Having just received such painful news, they will be unable to express their happiness for you, and it is unreasonable for you to expect them to do so. Remember, what you are telling them is rocking their familial foundation and rewriting their family history. They are losing their “family nest.”
  11. Tell them that you still believe in family and that you hope they will too. Tell them that you don’t expect them to take care of you emotionally or physically. That is your job, not theirs.
  12. Avoid telling them that you stayed together or delayed restructuring your family because of them. This will make them feel guilty for your unhappy marriage. Depending on their ages, they may already be recalling their childhood memories and wondering: “What was real and what wasn’t real? Were you really happy on those family vacations?” Divorce destabilizes the family system and inevitably shakes every family member’s perception of their past, present, and future.
  13. Assure them that this will be a process for all of you to move through, at your own pace and in your own way. Assure them that you will always love them and always be there for them in whatever ways will be most helpful to them. You want them to know that they aren’t alone, so they don’t become isolated and depressed. Encourage them to speak with a counselor or youth pastor about their feelings. Tell them you intend to talk with a counselor and that you will all get through this together.

What is Effective Communication During a Divorce?

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A recommended article written by CDSOC member Carol R. Hughes, Ph.D., LMFT, Collaborative Divorce Coach, Child Specialist, Mediator, and Trainer

“Couples who are considering separation and divorce often say that they had difficulty communicating during their marriage.  Their communication is unlikely to improve during separation and divorce unless they learn more effective skills.”

Click the link below to read more:

https://collaborativedivorcecalifornia.com/what-is-effective-communication-during-a-divorce/

 

Tips for Talking With Young Children About Your Upcoming Separation or Divorce

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by Carol R. Hughes, Ph.D., LMFT

Note: To avoid the clumsiness of using “child/children,” “children” is intentionally used throughout this article

It is clear you care about doing the best you can for your children through the separation and divorce process, because you are reading this article. Give yourself permission not to be perfect. No one is. Remember to keep taking slow, deep breaths. You and your children will get through this difficult time.

Consider the following tips to help you prepare to talk with your minor children.

Agree on a time when you and your spouse can talk with your children together. Siblings need the support system they can provide each other. Divorce is a major life crisis for all family members and should be treated as such. Ideally, it is best to share the news with your children when they will have adequate time to absorb what you will be telling them; for instance, when they do not have to go back to school in a day or two after hearing the news.

Plan your presentation to your children in advance. Make some notes about what you plan to say and review them so that you are familiar with what you intend to say. Anticipate what they may say to you. You can have the notes in front of you, if you wish, and simply say, “We have made some notes because what we are going to be talking about is very important for all of us and we don’t want to forget anything.”

Remember that your children will likely be in emotional shock after you tell them your intentions to end your marriage and they will not be able to absorb everything you say this first time. Be prepared to have the same conversation with them numerous times. Their shock and grieving will interfere with them being able to fully take in all that you are sharing.

Tell them that the two of you have decided to end your marriage and live in different homes because you have adult problems between you that you haven’t been able to resolve. Avoid using the word “divorce” because it is laden with negative connotations. Assure your children this is NOT THEIR fault. Children often automatically assume responsibility for family issues.

Reassure your children you love them, you will always love them and you will always be their parents. Avoid saying that you don’t love each other any more. Children then think perhaps their parents could stop loving them one day as well. This unsettles them and the stable foundation having two loving parents provides.

Avoid blaming each other. This is the time for the two of you to show a united front to your children. This news will shatter their view of their family as they have known it. Blaming each other puts them in the middle of your pain and conflict, causes them to experience divided loyalty and feel they need to choose sides, as well as feel guilt for loving both of you. Children often report they hate being put in this position and feel each parent was attempting to form an alliance with them against the other parent.

Tell them what is going to remain the same. Tell them that you are all still family, you will always be their parents and you will always love them. Explain you will be amicable so you can both attend their activities and family gatherings and not create tension for them, other family members or their friends. Explain your living situation (who is staying in the family home, etc.). Describe what will remain the same (school, activities, etc.). Assure them that they will continue to have the emotional support of both parents in the newly restructured family.

Next, tell them what is not going to remain the same. Tell them if you both will be moving into new homes. If feasible, involve them at the appropriate time, for example, once you have narrowed your choices down to two options. It’s important to be neutral and factual. Resist being a victim or martyr. It will only make children feel guilty and angry at their other parent.

You are still their parents. It is your job to put their feelings above yours and provide them with the support they need to hear, feel and understand what you are sharing with them. Acknowledge the announcement is a shock and their feelings (anger, sadness, grief, shock, etc.) are normal. Focus on and be empathetic with THEIR feelings. Don’t talk about your feelings, (how you haven’t been happy for years, how you deserve to be happy). Having just received such painful news, they will be unable to express their happiness for you, and it is unreasonable for you to expect them to do so. Remember, their familial foundation has just been rocked and their family history is being rewritten. They are losing their world.

Tell them that you still believe in family and that you hope they will too. Tell them that you don’t expect them to take care of you emotionally or physically. This is your job, not theirs.

Avoid telling them that you stayed together or delayed restructuring your family because of them. This will make them feel guilty for your unhappy marriage. Depending on their ages, your children may recall their childhood memories and wonder: ‘What was real and what wasn’t real? Were you really happy on those family vacations?’ Divorce destabilizes the family system and inevitably shakes every family member’s perception of their past, their present and their future.

Assure your children this is a process for all of you to move through, at your own pace and in your own way. Assure them you will always love them and you will always be there for them in whatever ways will be most helpful to them. You want them to know that they aren’t alone so they don’t become isolated and depressed. Encourage your children to speak with a counselor or youth pastor about their feelings. Tell them you have spoken with or intend to speak with a counselor as well, to talk about your feelings.

Take advantage of the Child Specialist available to you and your children as part of the Collaborative Divorce process to give your children a safe, healthy outlet to express themselves and begin the journey toward a positive, happy future.

How to Talk About Your Divorce With Your Adult Children

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by Carol R. Hughes, Ph.D., LMFT

One of the most difficult steps in the divorce process is talking about your decision with your adult children. It may feel like admitting a failure, or letting them down.

Divorce is a major life crisis for all family members and should be treated as such, even when your children are no longer “kids.” Children who are adults when their parents divorced consistently report years later the news of their parents’ divorce “rocked the very foundation” of their world.

You are making a good start and doing the best you can. You are reading this blog post. Give yourself permission not to be perfect. No one is perfect. Breathe deeply; you and your children can get through this difficult time together. These tips will help guide you through this process.

  1. Schedule a time when you can speak with your children together and preferably in person. Siblings benefit from the support system they can provide each other. When you are scheduling the time to talk, tell them you have something important to discuss with them. Assure them no one is sick or dying. If they ask you what you want to talk about, tell them you prefer to discuss it in person when you are together.

If it isn’t possible to speak in person, schedule a time to speak via Skype, Face Time or another video chat program. Avoid telling them via telephone and especially resist the temptation to communicate via email. It is too impersonal.

  1. Plan your presentation to your children in advance. Make some notes about what you plan to say and review them so you are familiar with what you intend to say. Anticipate what they may say to you. You can have the notes in front of you, if you wish, and simply say, “We have made some notes because what we are going to be talking about is very important for all of us and we don’t want to forget anything.”

Remember your children will likely be in emotional shock after you tell them your intentions to end your marriage. They will not be able to absorb everything you say this first time. Be prepared to have the same conversation with them multiple times. Their shock and grieving will interfere with them being able to fully take in all that you are sharing.

  1. Explain the two of you have decided to end your marriage because you have problems between you have not been able to resolve. Avoid using the word “divorce” because it is laden with negative connotations.
  1. Avoid blaming each other. This is the time for the two of you show a united front to your children. Remember this news will shatter their view of their family as they have known it for many years. Blaming each other puts them in the middle of your pain and conflict, causes them to experience divided loyalty and forces the impression they need to choose sides, as well as feel guilt for loving both of you. Adult children report they hated being put in this position and feeling that each parent was attempting to form an alliance with them against the other parent.
  1. Tell them what will remain the same. Tell them that you are all still family, you will always be their parents and your intention is to be amicable so that you can both attend family gatherings and not create tension for them and their significant others. If they are still in college, tell them if you will be continuing the financial arrangements you have had in place. Tell them if one of you intends to stay in the family home. Assure them they will continue to have the emotional support of both parents in the newly restructured family.
  1. Tell them what will not remain the same. You may be unable to continue the financial arrangements you had regarding college. You may intend to sell the family home. If you are helping them pay off college loans and won’t be able to continue doing so, inform them. Assure them you will do everything possible to assist them financially, as you have in the past, while at the same time acknowledging there will be some economic impact as the family restructures. It’s important to be neutral and factual. Resist being a victim or martyr. It will only make them feel guilty or angry at their other parent.
  1. Remember, no matter how old your children are, you are still their parents. It is your job to put their feelings above yours and provide them with the support they need to hear, feel and understand. Acknowledge you realize the announcement is a shock and their feelings (anger, sadness, grief, shock, etc.) are normal. Focus on and be empathetic with THEIR feelings. Don’t talk about your feelings, e.g., how you haven’t been happy for years, how you deserve to be happy, etc. Having just received such painful news, they will be unable to express their happiness for you, and it is unreasonable for you to expect them to do so. Bear in mind their familial foundation has just been rocked and their family history has been rewritten. They have become members of the “lost nest” generation. There will be no “family nest” to return to at the holidays.
  1. Tell them you still believe in family and you hope they will too. This doesn’t mean that they will not be able to having a strong and happy relationship. Tell them you don’t expect them to take care of you emotionally or physically. This is your job, not theirs. Tell them you have, or plan to have, your own support system separate from them and you want them to establish a support system for themselves as well.

Online groups for adult children whose parents are divorcing can be helpful. The books “A Grief Out of Season: When Your Parents Divorce in Your Adult Years,” and “The Way They Were: Dealing with Your Parents’ Divorce after a Lifetime” (both available via Amazon.com with excellent reviews) will help them realize they are not alone.

  1. Avoid telling them you stayed together or delayed restructuring your family because of them. This will make them feel guilty for your unhappy marriage. They will recall their childhood memories and wonder: ‘What was real and what wasn’t real? Were you really happy on those family vacations? Has my whole life been a sham?’ Divorce destabilizes the family system and inevitably shakes every family member’s perception of their past, their present and their future.
  1. Assure them that this will be a process for all of you to move through, at our own pace and in your own way. Assure them you will always love them and you will always be there for them in whatever ways will be most helpful to them. You want them to know they aren’t alone so they don’t become isolated and depressed. Encourage them to speak with a counselor about their feelings. Tell them you have spoken with or intend to speak with a counselor as well, because you have learned the end of a marriage is a major life stressor for all family members, second only to the death of a loved one. This too shall pass.