Prenuptial agreements (also known as premarital agreements) are useful tools for protecting the interests of marrying spouses in the event of a worst case scenario. However, there are certain challenges spouses sometimes run into while drafting such agreements. For example, if one spouse (or worse, the family of one of the spouses) insists on a prenup, but the other spouse sees it as an attempt to avoid sharing and/or commitment, the ill will that can develop can sour the entire marriage.
Generic Prenuptial Agreements: Declaration of War
The generic “all-purpose” prenuptial agreement an attorney typically drafts when couples fail to provide a sufficient level of detail might well be titled “The Declaration of Spousal War.” Generic prenuptial agreements often contain terms and conditions that are one-sided and favor one spouse (typically the spouse who is most motivated to draft the agreement) almost entirely over the other.
Customized Prenuptial Agreements: Easy to Go Beyond the Original Scope
Custom-written prenuptial agreements are better than the generic variety, but they have a tendency to expand far beyond their original, usually quite narrow, purpose. For example, a parent might originally insist on a prenup in order to protect a trust that has been set up for a child from a previous marriage. However, while discussing the agreement with the attorney, they end up adding several other clauses, and before you know it, the agreement starts to resemble a generic prenup.
Mediation as a Solution
Enter mediation: the process by which two people can most easily come to an acceptable agreement on an otherwise disagreeable subject. The basic mediation process involves discovering what the actual purpose of their position is, and determining the mutually-exclusive elements of each party’s position. This is typically accomplished through a guided conversation in which each side explains the motivation for their position. Ideally, this leads the parties to understand and empathize with each other, allowing them to work out a solution that leaves both sides equally satisfied. Along the way, if the parties feel it is necessary to speak to the mediator separately, this is certainly an option as well.
Focus on Building Together
At the end of the day, the mediation process is essentially a substitute for attorney drafting and negotiation. Instead of one attorney drafting the agreement (mostly one-sided) or the attorneys going back and forth with each other, the key points of the agreement are worked out in an amicable mediation session that aims to protect both parties’ interests as fairly and equitably as possible. Once the mediation is completed and both sides are happy with the terms and conditions that have been agreed upon, the parties typically take the document to separate attorneys to review and draft the final legal agreement.