Negotiate The Prenuptial Agreement First, and Draft Later

Collaborative and mediation are fantastic models to use when resolving disputes but they are not only used in separations or divorces. Read Amy Carron Day’s insightful take on how we can utilize these methods when we are creating prenup agreements as well:

Negotiate The Prenuptial Agreement First, and Draft Later
by Amy Carron Day, 8/17/2020 for Law.com

Prenuptial agreements are hard enough for couples; exploring issues with both parties before presenting a first draft of the agreement, or using Mediation or Collaborative attorneys can help make the process easier, and create happier and more committed clients.

“Negotiating our prenup was so painful that the experience tainted our whole marriage.”

“I thought we had agreed to what was going to be in the prenuptial agreement, but this agreement is so aggressive...how could he/she let the attorney write this?”

“We just wanted a simple prenup, so why do we have this very long contract that I don’t understand?”

These are just a few of the unfortunate comments I’ve heard from clients about their prenuptial agreements through my 25+ years of practicing as a collaborative attorney and mediator in New York. The decision to have a prenuptial agreement is often fraught with feelings of anger, fear, embarrassment, sadness and stress at a time when the couple only wants to feel utter excitement and hope for their future together.

In my view, the process by which couples negotiate the terms of their prenuptial agreement greatly contributes to their happiness with the decision to have such an agreement, and with the ultimate substance of that agreement.

The traditional process of drafting and signing a prenuptial agreement typically starts with the party who wants the prenup most retaining a divorce attorney who then meets with the client alone. Perhaps they speak at length about what he or she wants (or perhaps not), and the attorney drafts an agreement which includes most of the aggressive terms one can include: e.g. no marital assets will accumulate during the marriage, there will be no spousal support if they divorce (even after children), and both parties waive all rights under New York law to inherit from each other.

The client usually does not fully understand the practical implications of the agreement and presents the draft to his or her fiancé. Once the !fiancé retains his or her attorney to review the draft, the !fiancé becomes upset by the onerous and often unfair terms and conflict ensues between the couple. Perhaps this is the first big dispute between the couple, occurring right before the parties are to marry. This is not a good recipe for a satisfying process.

The process in working on a prenuptial agreement should be the reverse of the scenario described above. It begins with both parties discussing and negotiating the terms of their prenuptial agreement together in one room (or on Zoom), either with two collaborative attorneys or with a mediator before any agreement is drafted. Basic New York divorce law and estate law should be reviewed, so the couple knows the range of solutions if the parties divorce or die in New York without a prenuptial agreement. Then the attorneys or mediator should discuss the couple’s thoughts, fears, and future financial and personal goals, and incorporate their joint decisions into balanced terms that will work best for them.

Yes, there are often still difficult conversations and attorneys still advocate for their clients, but the conversations are constructive and collaborative attorneys and mediators create a problem-solving atmosphere to encourage both parties to be active in the process. Once the agreement is drafted, there are very few substantive revisions because the parties have worked together and agreed upon the terms in advance.

Fortunately, some couples know that their conflict with and/or lack of understanding of the first draft of their prenuptial agreement is not healthy for them and they choose to mediate their revisions. I have mediated prenuptial agreements where the consulting attorneys have ultimately joined in the final sessions to help the parties finish. I have also had parties realize in the midst of mediation that they need couples’ therapy and take a break to do that before finishing their prenuptial agreement in mediation.

Finally, I have had couples who use mediation or the collaborative process to resolve issues that have even arisen during the marriage to create a postnuptial agreement that will give them security in the event of an eventual divorce. It is clear to me that such agreements would not have been as successful had the agreement been drafted solely by one attorney with one client, prior to an in-depth conversation about the needs and goals of both parties.

Whether you choose to refer a client to mediation or the collaborative process for a prenuptial agreement, or you represent a client in a traditional prenuptial agreement process, I encourage you to take the time to talk through each issue with your client and the range of possible solutions so that the client fully understands the ramifications of each term in the agreement before you assume that aggressive terms are necessary or even desired.

Offer to speak to the fiancé’s attorney before drafting, recommend a four-way meeting, or simply suggest that the client more fully explore issues with his or her fiancé that seem undecided before making assumptions regarding the terms in a draft agreement. Both parties will feel more involved in the process, have a greater willingness to talk and take ownership of the terms, and even begin to make necessary concessions. And most importantly, the couple will have a greater chance of a happily ever after.

Amy Carron Day is a family and divorce mediator and collaborative divorce attorney in Manhattan.