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Using collaborative law to draft a prenup

Ensure that your prenup is fair and enforceable prenuptial agreement by collaborating with your partner.

The traditional approach to prenuptial agreements is often adversarial. Prenups are frequently drafted by one partner’s lawyer, using the most restrictive language to protect that partner’s interests. Upon receiving this seemingly hostile document, it’s understandable that the other partner may react defensively.

This adversarial process can cause, rather than solve, problems in the future marriage, but prenups don’t have to be created this way. A collaborative family law approach allows the engaged couple and their lawyers to work together to lay a foundation of trust and respect for the marriage.

About collaborative family law

Collaborative family law is not a type of law but rather an approach to law. In traditional law, the parties are considered to be opposing each other and to have separate interests.

In collaborative family law, each spouse still has his or her own lawyer, but the spouses and their lawyers acknowledge their common interests. All parties meet, perhaps multiple times, to determine those interests and share information before a prenup is even drafted.

Security for both parties

The collaborative law approach provides additional legal security over a traditional approach to prenups. Many prenups are tossed out during a divorce because they were signed under duress or contain unenforceable provisions.

When a couple and their lawyers collaborate, it’s less likely that a judge would be able to invalidate the prenup later.

Starting the process

You and your future spouse will each find a lawyer who works in collaborative family law and does prenups. Then both of you meet together with your lawyers. As needed, you can involve other professionals, like a mediator or financial planner. You may need multiple meetings to get through everything.

Your lawyers will explain your state’s default laws about prenups, as well as the division of property when couples divorce or a spouse dies. You and your future spouse can discuss what changes you want to make to those default laws, with your lawyers advising which changes are legally permissible.

Learn how to create a prenup from start to finish in our free guide to prenuptial agreemnts.

Aspects of prenuptial agreements

Prenups typically cover the division of assets and liabilities in these areas:

  1. Community versus separate property
  2. Inheritances
  3. Alimony and child support
  4. Pre-existing debts

For example, you might stipulate that your vacation house will become your child’s property rather than your spouse’s when you die, or that you retain all your retirement savings if you divorce.

You can also use your prenup to state you and your partner’s intentions around future assets and liabilities while you are married. For example, will you make your spouse a joint partner in your future business endeavors? Will your spouse jointly own all future homes with you?

Community property laws

Community property means that assets or income obtained by either spouse after marriage are considered to be equally owned by both spouses. Community property laws make it especially important to decide how you actually want to divide your assets.

9 states use community property law: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Alaska and Tennessee have community property law that spouses can opt-in to.

In the other 41 states, by default, assets obtained after marriage belong to just one spouse if only that spouse’s name appears on the asset ownership paperwork. Assets given as a gift to one spouse or purchased from one spouse’s separate money are also the property of that spouse.

Asset disclosure

At this stage, you and your partner disclose your assets, including savings, retirement accounts, property, stocks, and businesses. Failing to disclose your assets can invalidate a prenup, so take this step very seriously. A financial professional can help you document and disclose everything if your situation is complex.

Finalizing your agreement

Once you and your future spouse have brainstormed on what you want to achieve with a prenup (e.g., documenting your assets, creating an equitable division of assets if you divorce, assigning your assets to your children upon your death, etc.), you can prioritize your decisions and give them to your lawyers.

Your lawyers will integrate your decisions into the draft prenuptial agreement, working with both of you to ensure it reflects your intentions. By making the big decisions first, both spouses are freed from uncertainty about what the document will say or about their partner’s intentions.

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