Did you know that both you and your partner can work with one attorney to create a prenup? That’s right, the prenup process doesn’t have to play out as an adversarial drama centered around asset protection in the case of a divorce.
Instead, you have an option to work with a mediator to achieve a healthy and successful marriage. Instead of “lawyering up,” you work with a neutral third party to cement the love you have for each other with a prenup that empowers you to thrive out the gates. Let’s dig in and find out how.
The Pain Points of the Typical Prenup Process
In California, the process of drafting a prenuptial agreement often involves an attorney on both sides. Each partner works with their respective lawyer to come up with provisions to include in the agreement.
Most of these discussions are one-sided with each lawyer serving the interests of their client as much as possible, especially around financial matters. Then, in best-case scenarios, the couple meets up and discusses these points with each other in hopes of negotiating mutually agreeable terms. Otherwise, they let their attorneys negotiate their marital financial life like a business deal. Here are a couple of potential problems with this model.
Lack of Collaboration
The process above is iterative but not as collaborative as it could be. There’s nothing inherently wrong with attorneys wanting what’s best for their clients and chipping away to sculpt an agreement. It’s just not efficient.
The back and forth is inevitable and takes more time as you have to consult with your attorney after every time you talk it out with your partner. It also fails to encourage partners to have those uncomfortable, yet vital, conversations about marriage. Instead of talking to each other, you ask your attorneys to have those conversations for you. Remember, you won’t always have an attorney to have these conversations on your behalf during your marriage, so why would you do it before?
The two-attorney process can start to wear on you. If you’re the wealthier spouse, you’ll probably be advised to include provisions that protect your premarital assets and control the wealth you build after marriage. Your attorney will most likely draw up an agreement with only you in mind, sometimes including provisions that you either have never brought up with your partner, or provisions that may seem offensive to her since your attorney does not know the ins and outs of your relationship.
If you’re on the other end, I’m not surprised if your partner hired an attorney first; now, you’re in the position of having to get one as well. Most importantly, however, neither of your attorneys know anything about your and your partner’s relationship with money. It’s up to you and your partner to talk about money, and understand your respective relationships with money so that offensive provisions won’t be included.
Whatever the case may be, the process can quickly start to feel adversarial. You might be surprised by what you discover about your partner as each of you come to the table with demands that may appear selfish and defensive. And yet it’s just the nature of most two-attorney prenups.
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Benefits of a Mediated Prenup
Getting a prenup doesn’t have to be a buzzkill or in the case of marriage — a “lovekill.” It can take your relationship to new heights, especially with a mediated prenup.
Work Together, Save Time
With a single neutral mediator, you and your partner can have deep, honest discussions about finances and goals while covering your bases in a few sessions together. You cut out the back and forth and eliminate the adversarial nature of attorneys negotiating your financial lives on your behalf. With a mediated prenup, you talk with each other — right from the start — and the mediator guides the conversations to keep you both focused, fair, and goal-oriented.
You can get to a mutually beneficial and fair prenup faster with a mediator than with two representing attorneys.
Take Off the Boxing Gloves
Relax, it doesn’t have to be a sparring match. Prenup talks are great opportunities to think seriously about your future together concerning money, lifestyle, privacy, pets, kids, and so much more. This is your chance to lay the groundwork for a healthy, communicative relationship built to last for the long haul and through duress.
In mediation, you get to hash things out with an unbiased party who’s looking out for both of you. The sessions are designed to be constructive, not defensive. Plus, you can outline steps and guidelines for what’s best for the health of the marriage. This way, you’re building and collaborating at every discussion, not dodging and reacting to legal jabs.
Ultimately, the mediator helps you plan for marriage, not just for divorce.
Important Considerations on California Mediated Prenups
Under California law, a prenuptial agreement is not valid unless each person has an attorney who will explicitly advise you on your prenup. You and your partner will be required to hire a reviewing attorney to meet with you individually and to sign off on the agreement.
Also, if your prenuptial agreement contains spousal support provisions, then California law requires you to both have legal counsel. You can still have a mediator guide you through the prenup talks, but the agreement must be signed by each representing attorney.
The fact that you’re thinking about getting a prenuptial agreement is a great thing. This means you’re taking a conscious approach to your marriage and willing to invest time, money, and energy into your relationship. Whether or not you want to mediate or lawyer up to help you finalize the prenup will depend on your goals and specific issues at hand. More often than not, though, mediation will afford you the most efficient path — and with less friction.
If you’d like to weigh out your options, reach out to me — I’d be happy to help answer your questions. My approach has always been — and will always be — to help people like you build successful marriages and find the best solution possible.