Premarital agreements, also known as prenuptial or antenuptial agreements, are ancient. In the Jewish religion, marital contracts called ketubahs have been around for more than two thousand years. Many ancient cultures also have the equivalent of prenuptial agreements. The modern secular prenuptial agreements that exist in the United States can be traced back to sixteenth-century England. From these historic roots, the modern “prenup” has a basic focus for two people about to marry: setting forth the rights of each person in the property of the other in the event of divorce.
From ancient times to the present day, the typical scenario in arriving at a prenuptial agreement for a couple about to marry is for one person (often the wealthier person) to have his or her lawyer prepare a prenuptial agreement and then give it to the other person, saying some combination of words which amount to “I love you…please sign here.” The popular perception is that the agreement protects the assets of the wealthier person against a “gold digger” who marries more for money (a share of common assets) than for love. The person receiving the prenuptial agreement often has little negotiating power other than to call off the wedding. This approach mirrors the adversarial process in our court system.
Confrontation or mediation?
In preparing a prenuptial agreement, this two-sided, confrontational framework too often pits two people who love each other against each other. Why would two people who love each other want to be adversaries just months or weeks before their wedding? Shouldn’t the couple be focusing on becoming a partnership and reaching mutual agreements about their life together? Presumably the prenuptial agreement is important, so why would one want to risk its enforceability in a divorce if the agreement was not voluntarily and knowingly entered into by each person? These questions and concerns can all be successfully addressed by using a different process in the creation of these documents: mediation. As a neutral third party, a trained mediator can help both parties reach agreement and accomplish their objectives without conflict or hurt feelings.
It is time to move past the ancient times. Rather than being adversaries, soon-to-be-married persons should view themselves as partners in the crafting of a prenuptial agreement. By hiring a family law attorney who is a trained mediator, the parties discuss their finances, their concerns, and the goals of the prenuptial agreement in a neutral setting. The goal is to start from common ground – rather than from polar opposite positions – as the couple works together to achieve an agreement which protects both of their interests. To ensure that each party fully understands the legal consequences of the terms discussed in mediation, the interests of each person are represented by independent counsel. The mediator will then draft the prenuptial agreement for final review by each person’s counsel. Although there are three lawyers involved in this process rather than two lawyers in the adversarial model, the overall attorneys’ fees are less. This is because the approach is cooperative rather than adversarial; and, it always costs more money to fight rather than to cooperate.
Instead of saying “I love you…please sign here,” please consider putting it this way: “I love you….let’s discuss.”