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Prenuptial Agreements May Be Great, But What About the Process?

The holiday season is a popular time for engagements. Watching your beloved unwrap a sparkling engagement ring is so romantic -- but hopefully, you and your intended had discussed your vision for marriage long before you bought that ring.

Have you considered a prenuptial agreement? You really should. For many people, unfortunately, the idea of a prenup is fraught with negative associations, but it really shouldn't be. It may seem unromantic to get a prenup, but you can look at it another way. Every couple should develop a clear, detailed understanding of your income and assets, and every couple should have a concrete plan for how those resources will be shared.

Once that vision and plan are in place, you can see much more easily what would need to be divided if you decided to divorce. If you make those decisions in your prenuptial agreement, you can avoid a costly and hurtful divorce battle.

But wait -- isn't getting lawyers and haggling over a prenup just as bad?

Good question. As non-traditional dispute resolution methods become more popular, many divorce lawyers have promoted mediation and collaborative law as better alternatives to a traditional, litigated divorce for most people. One of the many good reasons is that traditional divorce litigation is an adversarial process. The divorcing spouses are set head-to-head in a winner-takes-all forum.

Using a less-adversarial approach can completely change the game. Instead of battling for supremacy, the divorcing spouses sit down and come up with a solution everyone can live with. It may even help build the problem-solving skills divorced parents will need when co-parenting.

So why don't we use mediation for prenuptial agreements?

Engaged couples have good reasons to consider mediating a prenup or using another alternative dispute resolution method. After all, promoting cooperation and problem solving is even more important before marriage.

Even so, there are reasons we don't see as much mediation in the area of prenuptial agreements as we do in other areas. Because the engaged couple are in love, one or both to feel pressure to let things slide. There may be a power differential. The wedding date can create time pressure.

It's important to ensure the parties are on equal footing, with full access to all information and plenty of time to think things over. In fact, the prenup may not be enforced if each member of the couple didn't have an independent attorney.

It's great that more couples are interested in negotiating prenuptial agreements using mediation. If you are, please talk to an attorney about making sure your prenuptial agreement is well drafted and enforceable should you need it.

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