Prenups - What To Do Before You Say "I Do"

By Ehsan Ali and Alnoor Maherali

An often sticky topic for couples who are about to get married is whether or not to have a premarital agreement (commonly referred to as a ‘prenup’). A prenup is a contract entered into by a couple who plan to marry, which states their rights and responsibilities regarding property and spousal support if the marriage ends. Having a prenup generally makes a divorce that much smoother and less expensive but most couples choose to avoid them. Why?

Many people find the concept of prenups uncomfortable. When you love someone and are about to commit yourself to them “until death do us part,” it can be difficult and awkward to have a discussion about breaking up. But while it can be unappealing to think about separation before one gets married, it is generally so much worse to have that conversation after a couple decides to separate and when there may be painful emotions to deal with. And with 39% of marriages in the US ending in divorce, and the average cost of separating around $15,000, having a prenup can be a smart decision. Even if it requires a difficult conversation beforehand.

But does a discussion about a prenup have to be that difficult? There can certainly be challenges when one person has a lawyer write-up terms for the other person to review before that person has even had a chance to consider what they want. As the lawyer has an obligation to defend their client’s interests and assets, they can often show little regard for the other person. In many cases this leads to shock and hurt feelings, and the situation worsens from there. It can also be challenging when only one person wants the prenup and the other person is going along with it just to accommodate them. As the conversation becomes more difficult, couples may even start to wonder why they are getting married at all.

The problem with this situation is that, even when both people want a prenup, the legal framework forces them to become opponents at a time when they are trying to be partners. Mediation offers a better way. In mediation, a neutral third party works with the couple collaboratively. And the goal is “supporting or fostering the upcoming marriage” as well as finding an agreement that is fair and right for both people. 

The keys to a good prenup mediation are openness and honesty from the couple, and a willingness to work in good faith to reach an agreement that both sides can be happy with. Some big issues prenups cover are: the division of property and finances, estate planning, debt liability, and spousal support, among others. Each person is asked to provide full disclosure of their finances and to put all of their concerns and ideas out in the open. The result is that the parties are in control of their future, financial uncertainty is reduced, the playing field tends to be more level, and the couple gets the added bonus of improving communication on important marital issues. Lastly, the mediation process allows for creativity and personalized solutions while enabling the couple to work together to arrive at a fair plan, should they someday choose to separate. 

At Venn Mediation, we suggest that couples start by making a list of what is important to them and what they hope to achieve. Then, we facilitate a discussion of their motivations for having a prenup. This often frames the discussion and gives the couple more perspective. One person may be bringing significantly more assets to the relationship; there could be familial pressure to have a prenup; or someone may have the painful experience of a messy divorce in the back of their mind. Though many people are surprised when their future spouse first requests the prenup, they can be more understanding once they learn the reason behind it. Mediation eases that process; allowing the couple to explore where each person is coming from, and how they can move forward together. 

We also give each person the chance to express their vision of what they want the relationship to look like while also exploring any differences. And we help our clients ensure that anything they agree to is both fair and realistic. Unlike with divorces, people negotiating prenups may be overly accommodating or may feel uncomfortable asking for what is rightfully theirs. A mediator can help people raise these issues in a safe space.

If you or someone you know is about to get married, contact Venn Mediation to learn more about mediated prenups. We are based in New York but are very experienced in online mediation and can work with people anywhere. We offer a free 30-minute consultation where we can walk you through the process and help you figure out whether it is right for you. Mediation is a cheaper and more collaborative process that can make difficult conversations easier. We would love to help.

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