Friday, June 21, 2013

Can Mediation Help with Prenuptial Agreements?

Prominent Michigan family law attorney Carole L. Chiamp, who is of counsel to our firm, is a family law court-approved mediator. She is among the first attorneys in Michigan to obtain this designation. She currently authors a monthly article in the Michigan Family Law Journal entitled "Mediation Matters." 

“We must stop thinking of the individual and start thinking what is best for society.”  - Hilary Clinton

I dislike prenuptial agreements so much that I refer clients who want them to other attorneys.  My opinion stems from my observations of the effects of prenuptial agreements during my years of practice.  I’ve never given much serious thought as to why I am not a big proponent of them – until now.  I recently read two articles by Laurie Israel, a certified mediator.  The information in the articles is illuminating 1, 2. 

Talking about prenuptial agreements (a contract between two parties intending to marry detailing their financial agreements) is awkward especially in first marriage situations.  However, if done properly, the agreement need not harm the marriage.

There have been many articles written about prenuptial agreements on the internet:  Huff Post, Peace Talks, and elsewhere all tout their favorability.  I don’t necessarily agree as sharing money in a marriage is an important component of that relationship.  Most of the agreements are written by an attorney for the monied spouse, usually but not always, the man.  The less monied spouse, usually the woman, often hears about her need to execute the prenup very late and often close to the wedding date.

Most prenuptial agreements overdo it and are overreaching, some are even coercive.  The agreements are often complex and expansive.  Her rights are frequently written so as to be severely restricted.  The toxic form agreement turned to by too many drafters often blocks access to everything her future husband brings into the marriage, everything he earns during the marriage, spousal support and attorney fees in the event of a divorce.  She is encouraged to see an attorney who should be outraged.  The negotiations start with hurt feelings once the woman understands what is being proposed.  This starts the adversarial relationship.  The attorney for the groom won’t budge.  She eventually agrees so as not to upset the groom, perhaps with a few minor changes or none at all.  The “business deal” is done.  It may one day have a devastating effect on the financially weaker of the two.

In a first marriage, often the parties to the agreement have little or no notion of what marriage is.  They don’t understand how finances play a part in the marriage.  She does not know what her “rights” in a marriage are.  She will find out when it is too late.  Often there are parents in the picture.  They did well during their marriage and provided wealth to their children.  They had a traditional marriage without a prenuptial agreement but now want their child to have one.  This, of course, may poison the marriage before it even begins.

Attorneys drafting prenuptial agreements almost always discuss “reducing risk” to the monied spouse.  However those same attorneys probably don’t have one of their own.  Many prenups include waiver of most, if not all, inheritance rights.  So the 25 year married spouse who thought she was giving up some rights in the event of divorce may end up giving up inheritance rights in the event of her husband’s death.

Prenuptial agreements are usually unfair to the person who cares for the home and children.  If the parties agreed that the wife should do these tasks, shouldn’t she be compensated in some way after long years of marriage?  The prenup ignores the law which has been developed over scores of years;  ignores it to the detriment of one of the parties.  Family law is there for good reason.  Changing it with the stroke of a pen doesn’t seem fair.

This having been said, in second marriages there may be good reasons for a prenup especially when there are children of first marriages.  The parties may want their children of former relationships to have some of their money in the event of death.  In either the first or second marriage, there are reasons to mediate.  Israel writes that there is a better alternative, the mediated prenup.  She claims that:

“In mediation, the couple formulates the terms of the prenup, face-to-face, with the assistance of the mediator.  Unlike “lawyering up”, they are modeling communication, collaboration, and mutual understanding and respect in coming to the terms of the prenup.  This action at the outset of their marriage is an achievement that reflects the connecting process of a good marriage.”

She believes that divorce attorneys should be the mediators of prenups as they fit the bill best because they know why marriages fail and see it first hand.  Since most of what happens is in the divorce setting they can help with workable provisions.  Also they should have experience in drafting prenups and the law.  Mediation levels the playing field and leaves the parties in control of the process.  Once the prenup is complete they can always be reviewed by attorneys.

Mediation takes both prospective spouses’ needs into account so that the agreement, if there is one,  is balanced and fair.  It may also improve communication on important issues like finances, family planning and respect for each other3.   

1.   Laurie Israel, Prenups – Don’t Lawyer Up, Mediate! Part I: “The Problem”, The Huffington Post, (Aug. 31, 2011, 4:06 AM),

2.  Laurie Israel, Prenups – Don’t Lawyer Up, Mediate! Part II: “The Solution”, The Huffington Post, (Sept. 2, 2011, 1:37 PM),

3.  See also, Barbara A. Atwood & Brian H, A New Uniform Law for Premarital and Marital Agreements, 46 Fam. L.Q. 313, (2012); Unif. Premarital & Marital Agreement Act, 46 Fam. L.Q. 345, (2012); Thomas J. Oldham, World Enactment of the Uniform Premarital and Marital Agreement Act in All Fifty States Change U.S. Law Regarding Premarital Agreements?, 46 Fam. L.Q. 367, (2012).

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