Mediating Prenuptial Agreements – Part II

In our last post, we discussed how individual and shared interests often come into conflict in negotiating prenuptial agreements. We saw how an aggressive attorney representing the wealthier of two engaged partners might produce an initial draft prenup with the potential to derail what would otherwise be a happy marriage. In this post we will talk about how the mediation process can provide a better alternative.

Mediating a Prenuptial Agreement Can Put a New Marriage on a Positive Path

Mediation allows the participants to control their own process. Too often, the parties to a prenuptial agreement do not start negotiations from a position of control. An aggressive prenup put forward by one party’s attorney might not even express the true desires of that party. It may instead represent the fears of a parent trying to protect an adult child’s future inheritance. Alternatively, it might represent the interests of family member trying to protect a family business. It might also simply reflect the aggressiveness of the drafting attorney. Lawyers drafting prenups often see their jobs as asset protection—a simple business deal. They neglect to consider the emotional health of the marriage that is at the heart of the prenup. This kind of regrettable stance can actually sow the seeds for divorce before a marriage even gets off the ground.

In mediation, rather than starting with a one-sided draft, each of the soon to be spouses can start by expressing their concerns face-to-face, with a mediator facilitating negotiations. This does not mean that no one will express fear or hurt feelings. It does, however, make it more likely that the parties will address such feelings through respectful communication. The mediator can help the couple build a collaborative spirit that will serve them well in the years to come.

Choosing a Mediator

Unlike each spouse’s separate attorney, the mediator is a neutral third party who will help ensure that a prenup will address the interests of both spouses. The participants themselves do the actual negotiating. This sets the stage for an agreement that both spouses can embrace, instead of one that each merely tolerates.

You and your future spouse should choose a mediator together. Divorce mediators are well-suited to mediating prenuptial agreements because they are so familiar with the consequences of divorce. They understand the issues couples face when negotiating marital settlements. They know how prenuptial agreements can address these issues in advance, while taking into account potential changes in circumstances over time. Divorce mediators also understand that the emotional landscape between couples, whether during a marriage or after a separation, is always different than the emotional landscape between arms-length business partners. A prenuptial agreement that is fair for both parties is not necessarily the same thing as an agreement that gets the best possible financial deal for one party.

Prenuptial agreements can be complex, so it’s also a good idea to have a mediator who is an attorney with a thorough understanding of family law. The mediator should be able to give you information about what happens in a divorce without a prenup, and explain how various proposed clauses might change those results. A good mediator will encourage you to explore creative possibilities that address hypothetical future scenarios.

Choosing Individual Reviewing Attorneys  

In New Jersey, each party to a prenuptial agreement needs to have individual legal counsel. Attorneys can provide input both before and during the mediation process. When hiring an attorney, make sure that person understands that you are mediating your prenup. Your attorney will always be your advocate, but you want an attorney who will listen to the concerns you have about your spouse’s interests and the future of your marriage, as well as to your concerns about protecting individual assets and income.

Things to Consider in Prenuptial Agreement Mediation

Soon-to-be-married couples can use the mediation process to come to a better understanding of each other’s spending habits and future goals. What are their expectations in terms of earnings, basic living expenses, entertainment, vacation spending, etc.? Do they agree that one of them may be a stay-at-home spouse or parent for some part of the marriage? How might they plan to compensate for a lack of earnings during any such time in the event of divorce? What happens if things don’t go exactly as planned? Mediation is a particularly good forum for brainstorming possibilities.

Incorporate Future Planning

The best prenuptial agreements are often those that grow organically over time. It may make sense, for example, to increase asset sharing as the length of a marriage increases. Alimony terms can also reflect both the length of the marriage and the possible future contributions each spouse. The agreement can specifically address contributions as a homemaker or parent as well as contributions as an income earner .

Consider the Need for Other Experts

If one or both of you has a very complicated financial situation, with multiple properties or businesses, for example, bringing a financial consultant into the discussions might be helpful. If the parents of either party are setting up a trust for an inheritance, it may be necessary to consult with a trust and estates attorney in addition to a family law attorney. Trusts must comply with very specific formalities to ensure that they will operate as they are intended to operate.

Remember that Your Marriage is Unique and Belongs to the Two of You

A prenuptial agreement refined through mediation can truly address the unique needs and expectations of both partners in a marriage. After going through the mediation process, some couples might decide that they are satisfied with the way the default laws will operate and would rather forego the prenuptial agreement altogether. Whatever the outcome, the knowledge gained through discussions will be empowering for both parties.

If you and your future spouse would like to discuss negotiating your prenup with one of our trained mediators, contact us today for an initial consultation.