TDC FAMILY LAW BLOG

Divorce does not need to be confrontational.  Divorce mediation is one of the most frequently used methods of negotiating a divorce settlement.  With mediation you can settle terms such as spousal and child support, custody and visitation and separation of assets.

With divorce mediation, as opposed to meeting with lawyers and a judge, you and your spouse hire a neutral third party to facilitate discussion.  The mediator does not make decisions, but rather works with both parties to come to terms that everyone can agree with.  There are quite a few reasons why mediation is a good way to go.  The first is that mediation is much less expensive than a court hearing, which is a huge motivator for a lot of people.  Mediation is also very successful.  The vast number of people who start with mediation, eventually come to a resolution.  

Mediation is not bound by specific guidelines or formulas.  When cases appear before a court, support is based on a formula that may not be feasible or make sense in your case.  With mediation, the resolution is based on the ideas of you and your spouse.

The main benefit of mediation is that the divorce settlement is not adversarial, but rather collaborative.  When there are children involved, you and your spouse are still going to be involved in each other’s lives.  You will have to make decisions about what is best for your kids, you will have school events and sports events.  There will be milestones your children will hit that will be shared with the whole family.  These times do not have to be marred by an ugly, confrontational process that caused anger, hate and hurt feelings.  You do not want to have your children put in the position of deciding which parent to invite to an event because they can’t be in the same room at the same time.

Divorce mediation does not mean that you are going into the process alone.  You have to know what you are looking to achieve.  You have to know on what terms you are willing to compromise and to what extent you are willing to do so.  You also need to know what points you will not negotiate as much on.  In order to put all of this together, you must to talk to an attorney that specializes in family law.  Do not walk into a mediation without reviewing all of the details beforehand.  

If you are unprepared, you may also wind up agreeing to terms that are not in your best interest for the sake of just coming to agreement, which you will then regret.

As you go through the process, it is also important to work with a family law attorney to discuss the progress of the negotiations.  Things may have started to move in an unexpected direction or items might have come up that you were not prepared for.  Do not be afraid to table a discussion if something arises that you were not prepared to discuss.  Do not be pressured by your spouse to have a conversation about things you are not ready to discuss.  It is also vital that you review the agreement with your attorney before you sign it.  You want to ensure the language is correct and you are signing what you have agreed to.   Agreements are harder to change after you sign them, if they can be changed at all.
Mediation is not for everyone.  Your spouse may use the mediation process to continually delay and stall the process to avoid paying any support.  If negotiations are not in good faith, then mediation will ultimately fail.  In that case, you must have an attorney at the ready who is familiar with your situation.

If you are starting the process of working with a mediator, contact Tracy Duell-Cazes, a state bar association certified family law specialist.  Tracy will work with you throughout the mediation process to ensure that you are negotiating in a way that will protect you and serve your family.  While Tracy is not present during the mediation sessions, you will know that you have her guidance and experience behind. Fill out our contact form to schedule a free consultation.

While you are at the beginning of your relationship, the last thing you want to think about is the possible end of the relationship.  Nothing can be more like a bucket of iced water being thrown on you than bringing up the subject of a prenuptial agreement.

Regardless of how difficult the conversation is, there are situations where a prenuptial agreement is extremely important.  If you are the owner of a business, regardless of its size and success, in order to protect the business and your partners, you are going to want to set reasonable expectations on what role the business will play in your married lives.

Whether the subject of a prenup becomes productive or it destroys the relationship before it starts comes down to how the subject is brought up and how it is handled.  There are lawyers who, during negotiations, will treat your fiancé as the enemy and will even recommend you not discuss the prenup without your attorneys present.  This is a sure-fire way to start off on a wrong foot.  The last thing you want is for the process to become adversarial.  It can be a cloud over the entire relationship causing it to become a self-fulfilling prophecy.

How can you bring up the prenup without it destroying the relationship?

1 – Start the conversation early.
The earlier the better.  These are seeds that are best planted even before there is an engagement.  Set early expectations to take the surprise, pressure and emotion out of it.

2 – Decide on the terms together.
Marriage is about collaboration.  Do not start the relationship off as adversaries.  A pre-drafted agreement puts your fiancé on the defensive.  The agreement will be skewed forcing your fiancé to hire their own lawyer who may be put in the role of having to take an adversarial position to protect her client.  You are then staring off in a bad place.

3 – Voice what you want and your concerns
It is important to draft a prenuptial agreement without anger or resentment.  You have to honest with your partner and you have to honest to yourself.  If you have specific items of interest, talk about them and why they are of interest.  The reasons may be personal history, or family history.  The reasons my have to do with personal beliefs or experiences.  If you are open and honest with your partner, you have a better chance of drafting an agreement that you are both happy with.

4 – Listen to your partner
A negotiation is a back-and-forth.  Do not go in dictating terms putting your partner on the defense.  Listen to their concerns and ideas.  Put yourself in their position and try to see things from their perspective.  This will help from a standpoint of the prenup as well as in your marriage in general.  If you run into a place where there is a disagreement, consider a compromise.  Find creative solutions to the problem at hand.  Keep in mind that the ultimate goal is to build a partnership.  This should not be looked at as a battle.

5 – Realize that things change over time.
Nothing is static in life.  Your relationship will grow as will your assets, your job, your finances and if you own a business, that will change as well.  After you get married, you may change your job or your business.  Your spouse may come to work for the business and even wind up with a stake in the business.  Perhaps when you have children you may decide that your partner will stay home with the kids.  You may start a whole new business altogether.  There may also be a time where if things are not going well with the business, your partner may be supporting you and your business.  The terms of the prenuptial agreement should reflect these possibilities.
The most important thing is to realize that a prenuptial agreement can very easily become adversarial.  You are starting to build a life together.  Don’t build it with crack in the foundation.  Have compassion and respect for your partner.  Work on the agreement together and show that you are starting your lives together in good faith.

If you have any questions or if you wish to discuss your situation further, please do not hesitate to contact us at 408-267-8484, or fill out our contact form to schedule a consultation.