The process of negotiating and entering into prenuptial agreements often puts toxic stress on an imminent marriage, just when the focus should be on the hopes, dreams and love of the couple. Furthermore, the terms of most prenuptial agreements often continue to stress the marriage long after the wedding bells have rung. Consciously mediating prenuptial agreements can provide appropriate protections to the person seeking the agreement, while reducing the damage to the marriage a lopsided agreement can cause.
As Laurie Israel points out in her article The Benefits of Prenuptial Agreement Mediation
"The negotiations between the two lawyers involved in the prenup can be quite painful for the couple. . . .[U]nfortunately, most attorneys do not look at the health of the marriage as a goal when they are working with a client on a prenup. The result can be a damaged relationship before the wedding even takes place. The tenor of the negotiations and process in formulating a prenup will never be forgotten . . . ."
Furthermore, the effects of a prenup that is negotiated in an unbalanced way can have far reaching and unintended negative effects on a marriage going forward. As the disparity in assets owned by each spouse grows due to the prenup, the sense of security of the less-moneyed spouse lessens, and his or her resentment often grows. Israel points out, “Studies show that marriages thrive on generosity. Prenups, as written by lawyers, are generally the antithesis of generosity.”
Much of the problem comes from the fact that, while negotiating a prenup pre-marriage, the couple is usually not sitting together with a conscious neutral and discussing what the long term outcomes might look like or considering compromises based on anticipation of those long term outcomes. The time to do this is pre-marriage, when the couple is focused upon their love for one another and is motivated to create conditions conducive to the long term health of the marriage. , For example, during a mediation, the couple can consider how to split up potential growth of certain assets in the event of divorce after the less moneyed spouse has spent years as a stay at home parent.
Please see Laurie Israel’s excellent article on this subject. And contact us if you wish to consult with one of our lawyer-mediators regarding the Consciously Mediated Prenup Process.
Peter Fabish is a co-founder of Conscious Family Law & Mediation LLC, a law and mediation firm providing healthy family transitions by avoiding costly, painful legal battles.