Friday, September 29, 2006

Prenuptial Agreements & Mediation

Most people are familiar with the concept of prenuptial or premarital agreements. Some people are even aware of the importance of having a prenuptial agreement that protects both parties in the event of a breakup (this is not just for "rich" people and is not just a benefit to the "breadwinner"!!) But not many people are aware of the unique challenges involved, including the emotional impact such a detailed financial and "what-if" discussion may have on your relationship. After all, who wants to think about breaking up when you're just thinking about getting married?!
It's easy to ignore that inner voice that tells you to consider a prenuptial agreement when you are in love and fully intend and expect to spend the rest of your lives together. It is just as easy to ignore the need for car or health insurance. Nobody expects to be in a car accident or to be diagnosed with a severe illness. But on the off-chance that something does happen, wow, aren't we relieved to have such good insurance?!!

While divorce is certainly not inevitable, it is just as foolish to ignore the need for a prenuptial
agreement as it is to ignore the need for insurance. And prenuptial agreements provide just as much insurance to women as they do to men. Both parties benefit from being educated on their rights and obligations, knowing what to expect in the event of "a disaster" and knowing they are true financial partners in this venture and that they are each protected in their own way.

To make the most of the process of creating a prenuptial agreement, I recommend Prenuptial Agreement Mediation as a unique form of premarital financial and marital counseling and also another form of insurance - just in case.

You could hire your own attorney, review your circumstances, expectations and the law and have your attorney prepare a prenuptial agreement according to your wishes, present the agreement to your "other" who has his/her own attorney review the proposed agreement, make changes on your "other's" behalf and go back and forth with you and your attorney until you have an acceptable agreement. This works out fine in many circumstances (even for some of my own clients), but is a little more "adversarial" than might be desired for the couple on their way to spending their lives as partners. It is "adversarial " because your attorney only has your interests in mind, and your "other's" attorney is only protecting your "other's" interests. There is no true collaboration or working together and there is much room for mistrust and uncertainty in what went into the agreement and why.

Prenuptial Agreement Mediation is extremely collaborative. It allows both parties to sit in the same room together with a mediator (who is experienced with divorces and prenuptial agreements) and talk about the law, your options, your expectations, problems that may arise with your expectations and discusses sensitive issues in a non-confrontational way.

The mediator understands the challenges and potential difficulties that one party may have in asking specific "what-if" questions and works skillfully to obtain all the necessary information and to discuss creative options for the particular couple and their circumstances. This is a less confrontational way to discuss issues of spousal support, whether income or retirement accounts will be separate property or community property, what should happen with the family home in the event of a breakup, and what changes should occur if children come into the picture.

These are difficult issues that a sensitive and compassionate mediator can discuss and explore in detail with both of you working together to create your perfect agreement for your marriage. Your own independent attorneys would need to review the final agreement, which ensures the agreement will be enforceable because each of you had your own attorney advising you at some point.

1 comment:

San Francisco lawyer said...

To many people prenuptual agreements seem hard and cold. I think that many people avoid talking about them because they do not want their partner to think that they do not love them.

But you are right. You really do need a prenuptual agreement. If the unthinkable happens and the couple decide to get a divorce, then the prenuptual agreement can=, to a certqin extent act as a road map for an amicable divorce settlement.

Too many people ignore the need for a prenuptual agreement.

You have an intersting take on the process of creating a prenuptual agreement. Using mediation in the prenuptual creation process seems as if it would make the process less cold and offending and more like a conversation.

Monty