There are many reasons parties might choose to enter prenuptial agreements, for example: to protect assets for children from a previous marriage; prevent a family-owned business from being dissolved; keep separate family estates, inheritances, trusts or funds which may be held in name only; or to shield assets where one spouse has worked and saved for years while the other is just starting out.
But the prenuptial agreement is a double-edged sword. It can start off marriage on the wrong foot by generating resentment and hurt feelings. Marriage is a partnership, personal and economic. Carving out a prospective spouse’s existing assets as belonging to him or her alone runs the risk of sabotaging that partnership before it has even begun, by making the other spouse feel distrusted and not fully embraced. This may be especially true where the marriage is the first one for both parties.
In the traditional prenuptial negotiation model, attorneys try to maximize advantage for their own clients, often with little regard for an agreement’s negative effects on the other party and the marriage. This can put prospective spouses in the uncomfortable position of being in an oppositional, arms’ length transaction during the same time when they are preparing to exchange vows. Even when both attorneys are sincerely concerned with the results for all, communication between the parties is largely filtered through counsel, and may result in misunderstanding and discontent. Feeling defensive or even estranged is far from the ideal way to begin a marriage, and these emotions may persist, undermining the marriage.
In contrast, mediation or collaborative law can transform a potentially destructive process into a positive one, by making the prenuptial agreement negotiation inclusive and mutual. Instead of starting negotiation by setting forth overreaching positions that the other party will then need to counter, prospective spouses can first sit down together with a mediator or collaborative law team, and identify their goals, concerns and fears. By participating in open, guided discussion rather than working through counsel behind closed doors, the parties can consider the long-term effects of provisions on their finances, each other, and their marriage.
With assistance, parties can then identify options that may meet both of their needs. With these solutions they can then create an agreement that safeguards their core interests, while still preserving the partnership aspect of marriage. They may even come to consider solutions that increase sharing over the life of the marriage, strengthening their bond. Negotiating a prenuptial agreement through mediation or collaborative law can help a couple walk down the aisle with increased understanding instead of alienation.