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Prenuptial & Postnuptial Agreements

Negotiating prenuptial agreements through attorneys before a marriage can cause irreparable harm to the marriage at the outset. Boilerplate prenuptial agreements with harsh and unfair provisions are often unthinkingly presented by initiating party’s attorney. With the involvement of attorneys, the process can become adversarial and bad feelings result, right before the wedding.

Often there is a power imbalance in the initiation of a prenuptial agreement, which, if uncorrected, can lead to coercion, unfair results, and smoldering resentment. All these can make future divorce much more likely.

Mediation is a good method for a couple entering into marriage to make their own decisions about what provisions work best for them. With the assistance of a neutral, trained prenuptial agreement mediator, they can think about their situation, and custom make their agreements to meet their own specific needs.

Prenuptial agreements (also known as premarital agreements and antenuptial agreements) are getting much media coverage today, although they are relatively infrequent in marriages. They can arise in both the first marriage and the second (or subsequent) marriages.

In many first marriages, negotiation of a premarital agreement happens right before the wedding. Sometimes the request is a surprise delivered to the future spouse. Sometimes there is notice and there is more time to consider it. It generally arises when there is a more-moneyed spouse (or one with family wealth) and a less-moneyed spouse. In subsequent marriages, financial imbalances as well as concern for children from prior marriages often prompt the request for a premarital agreement.

The wish to have a premarital agreement on the part of a spouse-to-be almost always causes great consternation and, often, bad feelings that do not go away. As parties’ age and the marriage matures, the financial considerations of marriage become an important aspect. A prenuptial agreement can contract away important features of marriage, and needs to be carefully considered.

Often attorneys are insensitive to the detrimental emotional, personal, and marital effect produced by a prenuptial agreement (and its negotiation) and provide boilerplate premarital agreements that are harmful and do not recognize or respect the wishes and goals of the couple. Mediation is an optimal setting for the future spouses to come together and talk about their goals, interests, and concerns. They can themselves determine what should be the terms and provisions in their prenuptial agreement.

Postnuptial agreements (agreements put into place by a married couple during their marriage) is a relatively new application of law. Mediation is an optimum setting for couples to formulate and negotiate these agreements.

 Postnuptial agreements (also known as postmarital agreements) are written agreements made between spouses during their marriage. The aim of a postnuptial agreement is generally to address problems in the marriage that are causing it to suffer. The parties negotiating a postnuptial agreement want to continue their marriage, and are intending that their agreement will help, not hurt, their marriage. Their intent is to create marital harmony and avoid divorce. Postnuptial agreements range from “who will take out the garbage” to the provisions they wish to put into place if their marriage does end in divorce, and the entire range in between. Because it is an agreement made after the marriage, it is called a postnuptial agreement.

Postnuptial agreements are a relatively new area of law. Enforceability issues are still being addressed on a state-by-state basis. The soundness of postnuptial agreements relies on the good faith and fair dealing of each of the parties. If a party wants to use the postmarital agreement for his or her advantage in a divorce, it might not be an appropriate vehicle for a couple.

It is likely that under the correct facts and circumstances, a properly conceived and fairly written postnuptial agreement can be valid in case of a divorce. More importantly, a postnuptial agreement can set the couple on a path towards reconciliation and clarity over issues that are troubling them and can help prevent divorce.

Negotiating a postnuptial agreement is just as sensitive (or more so) as negotiating a prenuptial agreement. The terms of a postnuptial agreement should be to be customized to each couple to address their specific concerns. Mediation is an optimal way for a couple to self-determine the terms of their postmarital agreement. Your marital mediator can guide you through the elements required and can assess your readiness to undertake these written commitments.

Some couples in marital mediation may prefer not to have a written agreement. They value the verbal understandings gained in the marital mediation process, it is enough for them, and they see a written agreement as being too intrusive to their personal relationship. Marital mediation can accommodate both preferences.