PRENUPTIAL AND POSTNUPTIAL
AGREEMENTS

The mediation process provides a constructive environment to discuss the expectations couples have in the contemplated marriage and for couples who are experiencing challenges in their existing marriage but do not want to divorce. The reason why the environment is constructive is due to the fact that the couple is working with a neutral person – the mediator – who is skilled at encouraging couples to share their concerns and expectations, to help each person to listen to what is being said, to help resolve differences and ultimately to memorialize the terms agreed upon into an Agreement which reflects that couples values and beliefs.

Life happens… make it clear in the beginning of your relationship where each of you stand

Postnupital agreement are similar to prenuptial agreement except they happen after you are married and helps define the relationship and keep you both in sync

Working with separate lawyers from the onset oftentimes sets up an adversarial mindset and on other occasions causes feelings of fear and insecurity which creates barriers in communication or worse prevents the agreement from even occurring because you can’t get to the negotiation table.

Mediation, because the couple is working with a neutral, minimizes the potential adversarial tone and mind-set, allowing the couple to communicate openly about how they each feel about each topic raised so that an Agreement can be developed. At the end of the process, before making any Agreement legally binding the couple is encouraged to have the document reviewed by their separate attorneys.

 

Prenuptial Agreements
Postnuptial Agreements
Prenuptial Agreements

Prenuptial agreements are also referred to as premarital agreements or antenuptial agreements and are often only thought or heard about when discussed in the media related to famous and wealthy individuals; however, they are becoming more frequent in everyday marriages. They can either be entered into on the first marriage or the second (or subsequent) marriages. In all events prenuptial agreements are negotiated prior to the marriage.

For many first-time marriages the request can arise when there is a more-moneyed spouse (or one with family wealth) and a less-moneyed spouse. In second (or subsequent)  marriages, the request typically arises as a result of financial imbalances, concerns and or obligations to the children of prior marriages, or even as a result of requirements in previous divorce agreements that require a pre-nuptial agreement, for example, a previous commitment to guarantee estate rights.

Many people fear negotiating prenuptial agreements, concerned that the discussions could cause irreparable harm and create stress upon the marriage at the outset resulting with bad feelings between them and/or their families, right before the wedding. The chances of these concerns becoming a reality are increased if negotiations take place in an adversarial setting with two separate attorneys, especially if boilerplate provisions are presented by the initiating party’s attorney in an unthinkingly and harsh way. Often attorneys are insensitive to the detrimental emotional, personal, and marital effect produced by a prenuptial agreement (and its negotiation) and are harmful to the process by not recognizing or respecting the wishes and goals of both parties as their job is to zealously represent only one party.

An increasing number of people are utilizing mediation as the preferred method of discussing their expectations for the marriage, as the process allows them to discuss what is important to each of them, allows them to make their own decisions about what provisions work best for them and at times explore topics they may not have considered. Mediation is an optimal setting for the future spouses to come together to discuss their beliefs, goals, interests, and concerns. They can themselves determine what should be the terms and provisions in their prenuptial agreement and have written creative clauses that address each party's concerns and or “what if” scenarios. Clearing the air of concerns and fears and memorializing each party’s intentions minimizes feelings of resentment and doubts as to each party’s commitment to the other. 

Both people are encouraged to have the final draft reviewed by separate attorneys to minimize any potential accusations that a party did not understand or that there was a power imbalance and or coercion.

Topics may include:

  • Financial expectations for the marriage
  • Identifying if property will remain the separate property or Marital Property
  • How to pay for expenses
  • How to treat income earned during the marriage
  • Spousal maintenance/alimony
  • Estate rights

How do I ask my future spouse for a prenuptial agreement? Be mindful that it’s all in the approach. This is a very sensitive topic and you don’t want to make your future spouse defensive. Be honest. Express your concerns sincerely. For example: if you come from a family where your parents had a very contentious divorce and you don’t want to replicate history … say it. Ask your future spouse if he or she would be willing to have a meeting with a neutral mediator where that person would help you both to express each of your personal concerns and expectations and agree upon the framework of the marital relationship.

When do I approach my future spouse with my request to have a prenuptial agreement?  It’s very important to raise this topic sooner rather than later. The rule of thumb in most states is to avoid having this discussion or signing a prenuptial agreement just prior to the marriage (within 30 days of the date of marriage) as it could leave the agreement open to questions of undue influence or coercion.  Give yourselves a reasonable amount of time to contemplate the discussions thoroughly.

Postnuptial Agreements

Postnuptial agreements or post marital agreements are agreements negotiated by a married couple during their marriage are a fairly new application of law. Mediation is an ideal setting for couples to formulate and negotiate these written agreements. Postnuptial agreements can be used to address problems in the marriage that are causing it to suffer or new circumstances that the spouses had not thought about when they first got married. Spouses who negotiate postnuptial agreements usually want to continue their marriage, and are intending that their agreement will help, not hurt, their marriage. Their intent can be to create mutual understanding, reduce tension over certain aspects of the marriage and to set in place mechanisms to avoid divorce. Postnuptial agreements range from delineating household duties to the provisions they wish to put into place if their marriage does end in divorce, and everything in between. Because it is an agreement made after the marriage, it is called a postnuptial agreement.

Postnuptial agreements rely on the good faith and fair dealing of each of the spouses. If a spouse wants to use the post marital agreement for his or her own advantage during a divorce, it might not be an appropriate vehicle for a couple. However, a properly conceived and fairly written postnuptial agreement that takes into account the fiduciary relationship between the spouses can be valid in case of a divorce. More importantly, a postnuptial agreement can allow the spouses to take a path towards understanding, reconciliation, and clarity on any issues that the spouses are having between each other and in this way can help prevent divorce.

Negotiating postnuptial agreements is more sensitive than negotiating prenuptial agreements as there can already be tensions in the marriage. Mediating the terms of a postnuptial agreement allows for customization to address each spouse’s specific concerns. Mediators’will guide you through the elements required to formalize your agreements and can ensure you are ready to undertake these written legally binding commitments.Often the value the verbal understandings gained during the mediation process and being able to see and hear the other spouses concerns and or points of view is enough and there becomes no need for a written agreement.

Topics may include:

  • Household duties
  • Management of household finances
  • Financial obligations to the marriage
  • Differences in parenting styles causing challenges in relationship
  • Challenges in communication
  • Building communication and listening skills
  • Managing realistic expectations

How do I ask my spouse for a post nuptial agreement?  Usually the request doesn’t come as a surprise because traditionally there are some issues in the marriage prior to the request being made. The important point is to emphasize that it is not a request to divorce, rather the request is being made in order to try and save the marriage and prevent divorce.

Should I try to go for marital counseling first?  That’s a judgment call for both of you to make. Marital counseling serves a different purpose in that the process explores reasons for the problems in the marriage, while mediating the terms of a post nuptial agreement looks to problem solve issues and if mutually requested memorializes the parties agreement into a legal contract rather than spending months or years analyzing why and how each party got to where they are.

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