Let’s face it – prenuptial agreements are not the most romantic things in the world. The reality is that you probably don’t want to be thinking about a possible divorce while planning the happiest day of your life. However, this does not need to be a depressing topic.
The traditional approach to prenuptial agreements focuses on what will happen if something goes wrong. It puts spouses-to-be in an awkward situation of planning their divorce before they’re even married. At worst, it forces people into a contentious discussion while they are supposed to be planning their future. Rather than focusing on what happens if you divorce, mediating your prenuptial agreement can be an opportunity to explore what is important to both of you as you start your new lives together.
A traditional prenup review goes something like: A client will bring in a very one-sided document which completely favors the partner asking for the prenup. When asked how they feel about it, most of the time the client responds, “I don’t like it, but I don’t want to get into a big argument right before the wedding.” When the client is asked what their spouse-to-be says about the prenup, the answer is usually the same: “He (or she) said that the lawyer said he had to do this. The lawyer just gave him this form and said this is a standard prenup and that I needed to sign it.” This conversation usually happens a week or two before the wedding.
The above exchange is problematic for a number of reasons. First, a prenuptial agreement needs to be entered into freely, voluntarily and without any type of undue stress or influence. In other words, this conversation should not take place a week or two before the wedding. This is an important discussion that needs to be thought through and considered well in advance of the wedding. Second, there should be some discussion about the terms of the prenup, not just “here, sign this.” This should be a dignified discussion, not a take-it-or-leave-it proposition. Third, your life is not based on some form – your prenup shouldn’t just be some form. It should be a thoughtful document which reflects the goals and interests of the spouses. Fourth, and most significant, the traditional approach to a prenuptial agreement is inherently adversarial. Weddings are stressful enough – the last thing you want is to create an adversarial situation with your bride-to-be.
Is this the experience you want to have when entering into a prenuptial agreement? Probably not. Here’s how a mediated prenuptial agreement might look:
Both clients will come in to discuss the prenuptial agreement. Instead of secretive discussions with separate lawyers, both clients get to share their hopes, thoughts, concerns and feelings about their new lives together and about the prenuptial agreement. Importantly, this is an opportunity to talk about your shared and separate interests as you start your lives together. This is especially true in second marriages. If you have been married previously, you probably know what works – and doesn’t work – for you. Take this opportunity to have an honest conversation with your new partner. Have you built a business or other significant assets prior to the marriage? Take this opportunity to talk about how the two of you will build your financial lives together going forward while potentially keeping premarital property separate. Is there a significant earnings disparity between you? Take this opportunity to discuss what that means to each of you in the context of your new lives together.
Marriage is a big decision and a prenuptial agreement is a big decision. Although there may be a temptation to just “get through it”, you will likely have a more satisfying agreement if you have more than one meeting. The first mediation appointment is an opportunity to share interests and consider various topics. The second (or possibly third) meeting is to make decisions about the terms of the agreement. In between meetings there will be items of homework. For example, clients may be asked to consider whether a “sunset clause” is appropriate (a sunset clause is a clause that terminates the prenuptial agreement or certain portions of it after some period of time, e.g., ten years).
In between mediation appointments – and definitely before you sign any agreement – you should meet with a mediation-friendly attorney to review and discuss the agreement. An attorney who is supportive of mediation can help you consider the agreement in light of your interests. Rather than trying to convince you to get as much as possible, the lawyer should help you figure out whether the agreement meets your interests and those of your partner. That feedback can then be shared with your spouse-to-be in the structured environment of the mediation process.
Ideally your prenuptial agreement will be signed at least two months in advance of your wedding. This timeframe insures that everyone has sufficient opportunity to review and consider the agreement. If there is a snag, it leaves you plenty of time to work through it. More importantly, getting this accomplished and out of the way will allow you to focus on what’s important – your new lives together!