First Thoughts

Whether you are entering into a relationship; already sharing a home together; or you or find yourself at the end of your marriage or long term partnership, developing a comprehensive prenuptial, cohabitation, marriage or separation agreement can be a daunting task.

How do you start? How do you create an ideal parenting plan? How do you divide the funds held in a joint account and who will carry the jointly held mortgage? Do the terms in your prenuptial agreement need to be reviewed when you decide to marry? What is the difference between a family home and a matrimonial home?

To create a viable long term agreement by directly involving you, a critical participant with your spouse or partner, requires acknowledging difficult emotions, distinguishing individual goals from interests in common, and being able to deal promptly with urgent needs. It also means ensuring that each spouse openly and fully shares with the other all information necessary to understand the big financial picture. Consider the current cash flow, future resources available for retirement, and savings available to fund the children’s post secondary educational programs. With each spouse fully understanding their legal rights and obligations and with complete financial information in hand, they will be able to critically assess all possible options: sorting the viable and durable ones from those which sound intriguing but are unsustainable. Working with a mutually agreed framework also helps to develop trust and consensus.

There are decisions to be made, long term consequences to grapple with…

Turning to a trusted colleague or friend to bounce off ideas may help with a few of the components which are part of the final settlement. These few confidants may in turn suggest others to join the trusted circle to offer you advice for the hard to navigate areas. When you are ready to get the ball rolling and don’t know how to proceed or where to turn, collaborating with others in the know makes good sense.

Who can you trust to provide accurate information? What are the long term consequences of each decision you need to make? Will your decisions about one issue be compatible with your other decisions? Are your interests being taken into account? Will your fears, anxiety and anger be understood? Are you being heard?

Find Your Process

There are a few paths to travel to get to the end goal of having an agreement which responds to your needs. In the spectrum of options, you can choose from interest-based processes where your core or essential needs direct the journey. Two of these interest-based processes are meditation and the collaborative process. Or, you can proceed on paths which are position-based where you put plant your feet and fight for what you want. Examples of these adversarial processes are court and arbitration.

If you are of the former persuasion, you understand that being fully informed about your legal rights and obligations by your lawyer provides a sense of direction. You understand what you are entitled to receive from your spouse or partner as well as what your partner is entitled to receive from you. You value complete financial disclosure in a safe environment. You understand that this disclosure is the foundation for building trust. Your personal involvement empowers you to put your mind to possible problems while working together to consider viable answers. The effort together to understand what your separate future lives may look like makes the final agreement stronger. If you believe that you and your spouse could focus your attention on resolving issues, be respectful of each other’s rights and obligations, and share an openness to long term settlement, then interest-based processes may be your path.

Fighting abusive behaviour, aggressive tactics, self-serving decisions of your spouse or partner may require that you either initiate or may be responding to a court action or lawsuit. The adversarial process may be started to ‘fight for your rights’ or gain a perceived upper hand. These processes use battle ideology, ramp up fear and emotion and seem to last forever. Once entrenched in this warfare it is difficult to keep your sights on a positive ending. The position-based processes are paper-laden and time-sensitive as there are often important court filing deadlines. This process can be very expensive in terms of your time, emotion and money. For the most entrenched ‘warriors’, and those who may be in abusive, difficult relationships, the position-based processes requiring a stranger to adjudicate the parties’ differences may be the appropriate process.

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