Pre-nups have a mixed reputation in our society.  Some people see them as smart protection from gold digging prospective spouses.  Others seem them as cold-hearted unromantic acts that stand in stark contrast to what you’re supposed to be feeling before you get married.

But, most people don’t know about another more positive use of a pre-nup:  An antidote to an ugly divorce™. 

You and your future spouse can create a pre-nup in which you agree to try to avoid an ugly divorce if the marriage doesn’t last forever.

You can sign a pre-nup in which you both agree to attempt to resolve any future divorce, custody, child support, alimony, and property division issues through collaborative divorce or mediation before you go to court. 

This kind of pre-nup doesn’t determine the terms your ultimate resolution.  You don't have to figure it all out ahead of time.  It simply determines the first process that you’ll use to figure out the details if things don’t work out.

A pre-nup cannot prevent a court from ordering financial support to a child.  And, in North Carolina, a court always has the right to enter an order for the custody and support of a child if and when the court finds it necessary.

However, North Carolina courts will enforce pre-nups under current law.

There are many potential benefits of a pre-nup that requires a couple to attempt a collaborative divorce or mediation before going to divorce court.  What are they? 

EMOTIONAL BENEFITS:  From an emotional standpoint, you would be committing to each other that even in the unfortunate event that things don’t work out, you do not want to put each other through the ringer in a divorce. 

Some people have are afraid to get married.  Many of those people have a fear of divorce, instead of a fear of marriage.  And that fear is usually based on their understanding of what a bad divorce looks like.  Maybe they have been a party to a bad divorce as either a spouse or child. 

A pre-nup that requires you to first try to handle a subsequent potential divorce with dignity, grace and respect may take a lot of the fear of divorce away.   And, that, in turn, may take some of the fear of marriage away.  And, less fear seems like a very good thing for the health of any marriage. 

FINANCIAL BENEFITS:  Financially, this kind of pre-nup commits you to processes that seek to preserve your financial well being in the divorce process.  Both collaborative divorce and mediation are based on the idea that people don’t want to spend their life’s savings on divorce attorneys and court battles.

LEGAL BENEFITS:  Legally, collaborative divorce and mediation open an almost limitless range of options for resolving divorce issues that are frequently not available in court.  These options often serve families far better than the limited options that a judge faces. 

Nobody wants to think about divorce when they are thinking about getting married.  But, we do it anyway.   Rather than letting it be a scary idea that sits in the back of your mind, you can plan for that “what-if” before you get married.

After all, agreeing in a pre-nup not to go to war in the event of a future divorce is an act of love in itself.  And, it may be a good step towards ensuring that your pre-nup never matters.  

While I have mediated family financial issues by for families that selected me in the past, I am now certified for court appointed mediations in the family law field.

This means that judges in Wake and surrounding counties can appoint me to mediate equitable distribution, alimony and other financial issues in family law matters.  

I look forward to continuing to help families resolve their financial problems as a NCDRC Certified Family Financial Settlement mediator.

Typically, tension develops because the husband and wife entered the marriage with unspoken but differing expectations about the issues they will confront after the wedding.

Those differing expectations can create conflict.  Unresolved conflict creates rifts in marriages.  Rifts create divorces.

One way to immunize your marriage against divorce is to learn to resolve conflict effectively.  That is something that typically takes time to learn and very few people possess that skill on the day they are married. 

Another great way to help immunize your marriage against divorce is to identify and address your differing expectations before the wedding.

How do you do this?  Pre-marital counseling is a great tool for identifying potential future conflicts. 

But, if pre-marital counseling is not your cup of tea, there are tremendous benefits to simply having a conversation with your future spouse about some typical issues that I have seen come up in marriages that end in divorce, such as:

- Who will work and how much will they work?  What kind of work/life balance do you expect the other person to maintain?

- How much money do you expect to make as a couple?

Ÿ - What kind of lifestyle do you each expect?

- Will one of you will stay home if you have kids?

- Do you want kids?  How many?

Ÿ - Do you prefer to be financially conservative (lots of saving, low risk moves) or more daring (lower savings, higher risk moves)?

- What kind of parenting styles do you anticipate?

- What are appropriate discipline techniques for your family?

- Where will you spend holidays and who else will be there?

- How involved will your in-laws and extended families be in your lives?

- How will you share the chores of the household?  Will you share them at all?  If not, who is going to do them?

- How clean do you expect your house to be on a regular basis? 

- What kinds of things do you expect to be able to spend money on?

- Who will handle the family finances?  

- Will the family follow a budget? 

- Do you believe in having debt, or are you debt averse?

All of these issues and more can be sources of friction in a marriage if not addressed early on.  Every couple has their own points of conflict.

I have found that many people make assumptions about their future spouse’s feelings on these topics; only to later find out they were wrong.  There’s an old saying about what happens when you “assume”, and it holds true in marriage as well.  Don’t assume what your future spouse thinks about something; find out.

Identifying and discussing these issues early on may not be comfortable. But those conversations will help prevent future conflict and therefore immunize your marriage against divorce down the road.  And that is a truly worthy goal.

1.         Don’t Hog the Kids:  Big holidays are important to kids.  They want to share the experiences with both parents and maybe even both sides of the extended family.  Just because you don’t care whether the kids see the other parent for these holidays doesn’t mean that it’s not important to the kids.

2.         Gift Giving is Not a Competition:  Don’t try to outdo or show-up the other parent with your over-the-top gift deluge.  You can’t buy your kids’ love; they already love you.  And, if they don’t, then that life size robotic T-Rex from the Times Square Toys R Us isn’t going to change that.

3.         Respect Traditions:  Kids like their family’s traditions (well, usually anyway).  Traditions represent stability and predictability for kids, something they are desperately looking for in the midst of a separation or divorce.   Maybe you’d rather eat a giant bowl of Aunt Bethany’s lime Jell-O mold with the cat food topping (anybody catch that reference?) than go on that caroling trip through the neighborhood.  But, that doesn’t mean that the kids don’t like it. 

4.         Don’t Argue About The Holidays In Front of the Kids:  Wanna know how to ruin the holidays for the kids?  Get in a fight about the holidays in front of the kids!  They’ll really come to cherish the annual holiday family shouting match.  Good times.

5.         Don’t Force the Kids to Choose Their Holiday Schedule:  Another stellar way to take the fun out of the kids’ holidays is to tell them “You get to choose whom to spend the holidays with!”  No pressure.  “Dear Santa:  You know, toys are great and all, but this year for Christmas I would like to be faced with a no-win decision that forces me to choose between two people that I love dearly, with the risk of terribly disappointing one of them!  And, if you can fit some self-esteem and peace of mind in your sack for next year, that would be great.  I think I’m gonna need it.  Love, Timmy.”

HOLIDAY BONUS!  (Sorry if you were expecting a Jelly of the Month Club membership):  

6.  Have a Conversation About When To Reveal the Santa Clause Truth:  If you really want a lump of coal, then go ahead and tell your kids that Santa isn't real without consulting the other parent.  Imagine the Christmas joy when the other parent finds out that their 5 year old doesn't believe in Santa anymore because you let the cat out of the bag!  Seriously, it's the gift that keeps on giving.  If the kids at school get to your kids first, then so be it.  But, nobody likes a Grinch.  Except for Cindy Lou Who and Martha May Who.  And they're not real.

North Carolina judges seem to be placing greater value on the opinions of neural third parties in custody actions.  But, expert witnesses that testify in court are cost prohibitive for most people.  Most people simply cannot afford to pay $5,000 to $10,000 or more in addition to their legal fees to hire an expert to provide this testimony.  And, experts hired by just one of the parties are hardly considered neutral.

In the face of these issues, more judges are appointing a Guardian ad Litem to provide truly neutral opinions on what is in the best interest of the child.  In a growing number of cases, a Guardian ad Litem is appointed by the court to investigate the situation and make recommendations to the court regarding the child’s best interest.  A Guardian ad Litem can be an attorney, but can also be a non-attorney. 

The value of a Guardian ad Litem’s testimony is that it is coming to the court from a neutral source who is not advocating for one of the parents, but instead for the child.  It is a truly objective look at the family and the child.  Objective neutral information is hard to come by in a litigated family law case.  That is why it is so highly valued by judges. 

Collaborative divorce has long utilized child expert neutrals to provide the kind of objective unbiased information that a Guardian ad Litem can provide to a court.  The major advantage of the Collaborative process is that it provides not just neutral input, but expert neutral input.  The child/parenting neutrals that participate in the Collaborative Divorce process are trained therapists that specialize in children’s issues.  They are experts on how children react to divorce and provide neutral, unbiased expert input as to how the children in a particular case are handling the separation and divorce.  They also provide information on what the children will need moving forward to help them adjust to the new family situation in the healthiest way possible.  And, because the child neutral is hired by both parties in a Collaborative Divorce, the information remains unbiased and objective.

The courts’ increasingly active pursuit of information from neutral third parties in the form of Guardian ad Litems reinforces the time-tested wisdom and value of the child neutral in the Collaborative Divorce process.  The advantage of Collaborative Divorce is that this neutral information is more affordable and is provided by an expert in the field.

If you believe that obtaining neutral expert information about your children and their adjustment to the divorce would be helpful to your decision making, then you should consider obtaining that informaiton through the Collaborative Divorce process.

But, in the world of adversarial, positional and leverage based legal negotiations, this is a foreign concept.  Even today, in the vast majority of legal negotiations, the goal is not to understand the other party, but to “win”.  Period.  This seems to be especially true in divorce, custody, alimony, equitable distribution and other family law related cases.

The legal profession as a whole is simply behind the times in negotiation skills and processes. 

The business world has understood the importance of understanding and empathy between parties to a negotiation for decades.

As early as 1989, Stephen R. Covey, in his bestselling book The Seven Habits of Highly Effective People named empathic interest based communication as one of the seven habits.  Covey calls the habit “Seek First to Understand, Then To Be Understood.”

This book has been widely read and applied to the business world for over 20 years. 

Here’s what Covey has to say about empathy: 

“When I say empathic listening, I mean listening with the intent to understand.  I mean seeking first to understand, to really understand.  It’s an entirely different paradigm.”

“Empathic listening gets inside another person’s frame of reference.  You look out through it, you see the world the way they see the world, you understand their paradigm, you understand how they feel.”

“Empathy is not sympathy.  The essence of empathic listening is not that you agree with someone; it’s that you fully, deeply, understand that person, emotionally as well as intellectually.”

“Empathic listening is so powerful because it give you accurate data to work with.” 

“Next to physical survival, the greatest need of a human being is…to be understood, to be affirmed, to be validated, to be appreciated.”

“When you listen with empathy to another person, you give that person psychological air.  And after that vital need is met, you can then focus on influencing or problem solving.”

From a negotiation standpoint, the bottom line points are:

1. That seeing the situation from the other party’s point of reference is crucial.
2. That you do not have to agree with the viewpoint, just understand it.
3. That empathic listening produces accurate data for the negotiation.
4. You cannot influence the other person or problem solve until you have sought to understand the other party. 

Whether you are involved in a business negotiation or a divorce negotiation, understanding the crucial role that empathic communication plays in the conversation will be the foundation to finding an intelligent, durable and mutually beneficial resolution.

When children are involved, productive communication is crucial to protecting the kids from the ravages of a divorce.

That is easier said than done.  So, the question becomes how to productively communicate?  There is a lot of information about how do to that.  But, in my experience, a lot of it is somewhat hard to really grasp and put into practice in the heat of the moment.

One suggestion that I use is to speak to your spouse or ex-spouse the same way you would speak to your child’s teacher at a parent-teacher conference. 

After all, there are some strong similarities in the conversations.  The goal of a parent teacher conference is frequently the same as communication between divorced or separated parents: discuss issues regarding the kids and possible ways to address those issues.  Further, you may disagree with something the teacher says, you may be offended, and you are certainly emotionally invested in the topic of the conversation, i.e. your child.

Think about how you would speak to your child’s teacher.  What tone would you use?  What things would you say and not say, even if you were thinking them?  What would be your goal?

I suspect you would adopt some combination of the following techniques in a conversation with your child’s teacher:

            Ÿ          Paying attention

            Ÿ          Politeness

            Ÿ          Asking questions to clarify information

            Ÿ          Making an effort to understand what the teacher is saying

            Ÿ          Acting respectfully

            Ÿ          Working together

            Ÿ          Acknowledging the joint interest in your child’s well being

By contrast, you probably would not do the following in a conversation with your child’s teacher:

            Ÿ          Blame the teacher

            Ÿ          Accuse the teacher

            Ÿ          Yell

            Ÿ          Insult the teacher

            Ÿ          Threaten the teacher

            Ÿ          Act rudely

Why?  Because you understand that the teacher has a lot of influence over your child and spends a lot of time with your child.  Because your relationship with that caretaker is very important to your child’s well being. Because you know that you’re going to have to see that teacher again.  Because you actually want to have a productive meeting.  Because you want what is best for your child. 

That being the case, why would you treat your child’s other parent differently?  After all, isn’t your child’s other parent going to be at least as influential and important for your child as the teacher? 

Yes, there may be emotional reasons for treating your ex-spouse differently than your child’s teacher.  But, are your emotional issues more important than your child’s well being?

In my experience, having a parent adopt a tone appropriate for a parent teacher conference sets the stage for a productive collaborative conference or mediation.  And it gives clients an easy reference point, a convenient “go to” mode when they feel themselves struggling to communicate well.   

In my experience, this technique frequently helps, and rarely, if ever hurts.

But, whatever it is called, there is an odd (but predictable) event that frequently happens with divorcing couples.  Let’s call it the “contamination effect”. 

When a couple decides to separate, the disharmony of the tail end of the marriage somehow contaminates the rest of the marriage.  Sometimes one or both spouses look back on the whole marriage through the same lens that they view the separation or divorce.  The emotions of the very end of the marriage retrospectively color their view of the entire marriage.  Some couples even start playing the marriage over in their head looking for reasons to convert good memories of moments in their marriage to bad memories.  The phenomenon is displayed visually in this video.

This often becomes more prevalent as the legal fighting ramps up through adversarial negotiation and court battles.  In my experience, the worse the divorce gets, the more the couples’ view of their marriage is likely to be distorted.

And that phenomenon creates a lot more unnecessary destruction.  There are enough tough repercussions of divorce.  Couples should not have to lose the positive memories of their marriage in a divorce.  In fact, I suspect that this kind of thinking is what causes many people to give up on marriage once they have been divorced.

That is just one more reason why it is important that each couple make an educated decision about their divorce process.  Choosing a divorce process that does not create more hard feelings can be very important.  Honoring the years of marriage while creating a plan for each party to move forward can help couples leave a marriage without having to entirely revise their memories of the past.