Premarital Agreement Mediation
Negotiating a premarital agreement can be very touchy. Typically, the process begins with one spouse-to-be creating a draft of a document that protects that party, seemingly to the exclusion of the other. The “moneyed spouse” proposes initially that very little (or none) of the money or assets are to be shared with the other spouse except under the control of the moneyed spouse. And, there is no guarantee or minimum amount of money or assets paid to the less-moneyed spouse, either at separation or death (even if the marriage is intact), and there are iron-clad provisions dictating who gets what if the parties separate. You can imagine the ire of the other spouse when this kind of one-sided draft is first read.
Negotiating a Premarital Agreement in the “traditional” way – spouses-to-be standing with lawyers taking adversarial positions like the marriage is a business transaction – can create destructive emotions that are carried over into the fledgling marital relationship. The transactional business deal approach can be bruising and destructive, and can lead to an inadequate document. The quality and terms of the Premarital Agreement can be poor since it was not tailored to the real needs and aims of the future spouses. There is a better way to negotiate Premarital Agreements than the “traditional” type of negotiation.
Premarital Agreement Mediation!
Advantages of Mediating the Premarital Agreement
Mediation is an excellent way for people to discuss tricky issues that provoke hot emotions. The emotions will still provoke hard conversation, but the mediation setting can lower the heat. The first difference is that rather than begin with a document that one side has become attached to, a Premarital Mediation can begin with balance since no one has become cemented in his or her proposals. Prior to Premarital Mediation, each spouse-to-be is offered a checklist of discussion items. The idea of the Premarital Checklist is for the couple to consider his and her individual approach to the 4 pillars: family, finances, faith, and fun. Ideally, the couple will discuss approaches and goals prior to mediation. The Premarital Checklist includes issues like: money and asset accumulation and management; who makes money decisions; who handles the checkbook; savings; money styles; long-term goals; credit and debt; religion; employment; children; relocation; extended family; post-separation spousal support; business ownership and participation; marital fault; and more.
In Premarital Agreement mediation, the couple can formulate the terms of the Agreement face-to-face, with the assistance of the mediator, lawyers, and the Premarital Agreement Checklist of each party in the background. Rather than trade term sheets back and forth, the spouses are communicating and collaborating toward a mutual understanding and respect while coming to terms of the Agreement. This give-and-take at the outset of the marriage is an achievement that starts the marriage off successfully.
Balance, Informed Choices, Enforceable Terms
A Premarital Agreement must not be coercive. Each party must freely and voluntarily agree to the terms. A Premarital Agreement must be enforceable. The danger in a “traditional” Premarital Agreement negotiation is that one side is perceived to be a bully, arm-twisting for favorable terms under the threat of backing out of the pending nuptials. If the agreement is not coercive, the parties will likely stand behind it if there is an initiating event that causes it to come into play. The Premarital Agreement mediation process creates more balanced terms, informed choices, and an enforceable document.
In mediation, the discussion can be rational and productive. Ideas about to how to fairly and accurately balance and accommodate the parties’ concerns can be processed. The parties may also learn about ideas and solutions they would not have been aware of without the collaborative input of the mediator and lawyers. Having a spouse-to-be bring along an independent lawyer is not adversarial – in the context of the mediation, the goal of all participants is to craft an Agreement that is reflective of the needs, desires, and concerns of each spouse-to-be.
There is no better way to come to a true meeting of the minds that takes into account the interests and goals of each spouse-to-be than to do it face-to-face in mediation sessions with a mediator.