Collaborative Marriage Planning
The Bencher | September/October 2022
By Joryn Jenkins, Esquire
As a divorce attorney, unless I’m helping with the preparation of a prenuptial agreement, I don’t often enjoy the blissful beginnings of a union. In my line of work, it can feel like everyone is getting divorced because that is what I see all day long. However, I have discovered a new way in which I can use my collaborative divorce training to assist new couples in the midst of romance.
I met with Irving the other day, a 61-year-old wealthy widower with adult-aged children. He had called me because his partner at work was getting his divorce through my office, collaboratively, and he wanted a prenuptial agreement. Now, seven years after the death of his wife, he had fallen head over heels in love with someone new.
Irving practically glowed as he proudly described his new love: “I didn’t think I’d ever find someone after Ellen passed. We were married for 30 years, and then we went through so much together as I watched her get weaker and weaker from the cancer. When her time grew short, she told me that, when she passed, she wanted me to find someone new, but I couldn’t even comprehend it at the time.”
Handing Irving the box of tissues, I nodded my head in sympathy, thinking of my own husband and how I couldn’t imagine life without him.
Irving wiped away a tear, took a deep breath, and continued, “The first four or five years were so difficult. But then, it was almost like the fog lifted. I started to feel like my old self again, and I wanted to start enjoying life again. So you know what I did?” he asked with a twinkle in his eye.
“I joined an online dating site. Have you ever done such a thing?”
“No,” I laughed. “That wasn’t a ‘thing’ when I was single.”
“It felt so silly at first. But as I perused the profiles, I realized that many of these women were just like me, newly single after a long monogamous relationship. I reached out to a few of the women, took a few out on dates, and, after about six months, I met Irene.”
“Tell me about Irene,” I prompted.
Irving sat up straighter in his chair and grinned broadly. “Irene…let me tell you, she is really something. She loves to golf like me. She cooks like a culinary genius. And she is so witty. She always has me laughing!”
“She sounds lovely. So what makes you want a prenuptial agreement?”
“Well, I do trust Irene completely, but I’ve made quite a bit of money in my life that I’d like to protect for the children that Ellen and I shared. And I am not an ignorant man. I am aware that, regardless of how smitten I am with Irene now, and how beautifully things seem to be going for us, that can change in the future.”
“Very smart,” I replied. “So, how do you see your future?”
“I am looking forward to retiring and traveling the world. She, too, is excited about that. But she is also looking forward to making a permanent home on the water in Clearwater and spending time relaxing in the garden and the pool, with me. And her grandkids.”
“So your goals may eventually differ,” I responded, “and that could lead to problems later. But the two of you are aligned with one another, so you’re in a better place than most of my clients. I do understand why you want a prenuptial agreement, and I think that’s smart, especially considering your sizeable assets and that you have adult children. After all, you don’t want to set Irene up to litigate with your kids in the event that you pass before she does. But may I suggest a different process than the normal process for a prenuptial agreement?”
“Sure,” Irving responded, leaning forward and listening intently. “I’m here for your advice, after all!”
“Well, in the normal course of these events, one person, usually the one with the greater amount of assets, suggests a prenuptial agreement to the other. If this initial conversation doesn’t chill their relationship entirely, the person wanting the agreement asks his attorney to draft one up. The attorney typically drafts a very one-sided agreement and advises his client to pay for his fiancée to have her own attorney review it. That attorney will usually view the agreement as very one-sided and advise her client accordingly. This can cause a lot of strain on the relationship, as the parties, through their attorneys, begin to negotiate with one another. While they will usually eventually come to an agreement and continue with their plans for marriage, trust is usually lost during the process, and what should be a happy time proves to be a stressful one.”
“That is not what I want at all,” Irving responded, sitting back and taking a sip of his coffee. “But you have another suggestion, right?”
“I do. Have you heard of collaborative divorce?”
“Yes, my neighbors just divorced collaboratively.”
“Are they still friendly with each other?” I asked.
“They are! I just saw them at their daughter’s wedding, and they even shared a dance together. So what is this miracle process all about, and what does it have to do with my prenuptial agreement?” Irving inquired.
“Collaborative practice is a team process in which each client is represented by his own attorney. Depending on the issues involved, a facilitator, someone with mental health training, and a financial professional usually join the team. Sometimes other professionals are included, if and when they become necessary.
“The team focuses the clients on interest-based negotiations, rather than on positional bargaining. The goal is to help the clients reach an agreement that meets the most important interests of both of them, rather than having them get stuck in the positions, which often happens when parties litigate. The clients agree to be completely transparent, so there is a high level of trust. The attorneys vow to withdraw if the process doesn’t work and litigation becomes necessary.
“But this process isn’t just for divorces. We’ve used it with much success when negotiating prenuptial agreements.”
“Say no more,” Irving replied, putting his hand in the air like a stop sign. “After seeing firsthand how it worked in my neighbors’ divorce, that is the process I want to use for my prenuptial agreement negotiations.”
“That’s wonderful. I believe it is the right choice for you.” But I wasn’t finished. “I also would like to suggest something else to you.”
“What’s that?” Irving asked curiously.
I replied, “Collaborative marriage planning. Unlike collaborative divorce that seeks to help spouses end their marriage in a healthy way, the goal of collaborative marriage planning is to guide couples as they transition from single to married, from married with kids to empty nesters, from working to retired. We apply it whenever a significant life event, that I often see causing divorce, looms and the couple is smart enough to perceive the threat in time to take preventive action.
“As in the collaborative divorce process, an interdisciplinary team of attorneys and neutral professionals apply collaborative practice to assist the clients as they transition from one stage of their relationship to another, as here, from the romantic stage to the realistic stage. The professionals educate the couple on interest-based negotiations and goal setting. The team promotes transparency and teaches positive communication skills.
“The goal is to prevent problems from arising, as well as to teach the couple how to deal with their issues in a positive way when they do crop up. The team teaches the couple techniques for effective communication. The couple learns how to brainstorm and to problem-solve together.
“The end result of collaborative marriage planning is a written agreement that defines and distributes roles in the relationship. Much like a partnership agreement in a business, this agreement sets the expectations and guidelines for the couple. The agreement includes terms for periodic evaluation and feedback, as well as adjustment and revision. Most agreements will include promises to reunite the collaborative team as problems arise, and, in the event of divorce, a vow to first try the collaborative divorce process option.”
Irving asked, “Tell me again the professionals included in the process?”
“Lawyers in the collaborative marriage planning process not only act as trusted advisers to their clients, but they also draft documents that can be both legal and aspirational.
“A facilitator guides the team. Clients can choose a single facilitator or two coaches, one each. We usually use the single facilitator, who leads the team in constructive communication. She plays an important role in setting client goals.
“The financial professional (FP) can help the couple to create a clear plan for managing their finances. Considering that financial issues are the main reasons why couples divorce, the FP plays a very important role on the divorce team. And given your children’s concerns here, I suspect that role would be key to your marriage planning as well.
“And other experts may be utilized depending on the specific needs of the couples, like child specialists, real estate experts, tax experts, valuators, and others.”
Irving interrupted, “I think that Irene and I could really benefit from the help of all those professionals. Could we include the prenuptial agreement as part of the end product?”
“Yes, of course. One of the last steps in the process is to craft provisions covering the end of the relationship, which is exactly what the prenup does. The advantage to the collaborative marriage planning approach, however, is that the provisions regarding end of the relationship, which can be so off-putting for the person not requesting the prenup, are not all you talk about in the process. So, the marriage planning is a far more constructive approach to negotiating those end-of-relationship terms, even though, in the end, they’re the same terms.
“Now that you know about collaborative marriage planning, do you think that it is a process that would benefit your relationship?”
Irving took another sip of his now cold coffee and contemplated our conversation. “Yes, I do think we could benefit from this process. Thank you for sharing it with me. I’ll talk with Irene tonight, and we’ll be in touch soon.”
I walked out of the consultation happy that I was helping a couple learn how to stay together. Collaborative life planning will be a constructive process for so many couples!
Joryn Jenkins, Esquire, is a trial attorney at Open Palm in Tampa, Florida, where she concentrates on the practice of family law. She is a member of the American Inns of Court Leadership Council and received the prestigious American Inns of Court A. Sherman Christensen Award in 2001.