Marital Agreements:

Before a first draft is created, both parties are provided with their “default” Premarital or Postmarital Agreement (according to existing California Family Law), which sets out the rules that would apply if they did not create their own Premarital or Postmarital Agreement.

If collaborating, each party retains a collaborative attorney, and the parties and attorneys meet together to discuss which of the “default” rules the couple wishes to modify in order to respect the following:

1. Each person’s goals for the marriage;
2. Each person’s goals for himself or herself;
3. Each person’s goals for the other person;
4. Each person’s concerns giving rise to his or her belief that a Pre/Postmarital Agreement is needed; and
5. Each person’s concerns about the consequences of a Pre/Postmarital Agreement in terms of his or her own need for security and for being cared for by the other person.

The attorneys draft the Premarital or Postmarital Agreement based on their discussions with the couple, and jointly present the first draft to the parties for their review and comments.  Once the couple has provided their input, the Agreement is finalized.

If mediating, the couple meets with the mediator to have the same conversation as described above, and in most cases the mediator takes responsibility for drafting the Agreement. The difference is that there are usually no attorneys present in the discussions. Because of the stringent requirements for enforcing these Agreements, most professionals prefer that both parties have their own advising attorneys to educate them as to their legal rights, to support them in the process, to review the final Agreement with the client, and to countersign it. In cases where people are making their own rules about potential spousal support, most professionals agree that it is mandatory that both parties have their own attorneys, and that these attorneys sign the final Agreement.

Cohabitation Agreements:

Before a first draft is created, both parties are educated about their existing legal rights and responsibilities (or lack of same) given their choice to forego being married or registered domestic partners.

In creating their Agreement, the same basic information is developed:

1. Each person’s goals for the relationship;
2. Each person’s goals for himself or herself;
3. Each person’s goals for the other person;
4. Each person’s concerns giving rise to his or her belief that a Cohabitation Agreement is needed; and
5. Each person’s concerns about the consequences of a Cohabitation Agreement.

The attorneys draft the Cohabitation Agreement based on their discussions with the couple, and jointly present the first draft to the parties for their review and comments.  Once the couple has provided their input, the Agreement is finalized.

If mediating, the couple meets with the mediator to have the same conversation as described above, and in most cases the mediator takes responsibility for drafting the Agreement. The difference is that there are usually no attorneys present in the discussions. Because of the stringent requirements for enforcing these Agreements, most professionals prefer that both parties have their own attorneys to educate them as to their legal rights, to support them in the process, to review the final Agreement with the client, and to countersign it. There is, however, no legal support for the proposition that a Cohabitation Agreement is subject to the same rules as Premarital or Postmarital Agreements, and the preferences for independent legal representation may not be as compelling.