Romantic Negotiations: The Prenuptial Agreement

by Robert Benjamin
January 2013 Robert Benjamin
Pre-marital negotiations and prenuptial agreements remain necessary and useful, useful, and far from seeding distrust, counter-intuitively, can create a greater sense of intimacy in a relationship. In marriage, as in any partnership, for the participants to have an early opportunity to directly discuss and negotiate the difficult issues they may well encounter, allows for the grounded trust essential for a resilient and romantic relationship to emerge.
“There is a curious paradox
that no one can explain-
Who understands the secret of the
reaping of the grain;
who understands why Spring is born
out of Winter’s laboring pain;
or why we must all die a bit
before we grow again.”
---The Fantasticks

The idea of beginning a marriage with the execution of a prenuptial agreement setting out the terms and conditions for the division of assets in the event of a divorce, at the very least, offends the sensibilities of many people and professionals alike. They believe such negotiations tear at the bonds of trust essential for a “healthy” marriage. The business matters that are the subject of most prenuptial agreements are viewed as secondary to the emotional relationship and, if there is good communication, need no separate and direct attention. Such assumptions and biases about the nature of the “modern” marriage are, however, risky in light of the extent to which people report unresolved money and business issues to be a significant cause of stress in their personal relationships.

Much of the resistance and antipathy toward prenuptial agreements can be traced to the shifting notions of love and marriage that has taken place over the course of the last two centuries. For much of human history the social construct of marriage was predominantly a calculated business arrangement designed for economic security, the accumulation of wealth, or forging and consolidating political power and social prestige and influence. The present day emphasis on marriage as primarily a personal, emotional and romantic bonding has evolved over roughly the last 150 years beginning with the Industrial Revolution. (Coontz, Stephanie, Marriage, A History: How Love Conquered Marriage, 2006)

Marriage has been and remains a core ritual and social structure of society practiced is a myriad of forms in every culture throughout history. As with all such human rituals and behaviors, this primal form of collaboration has evolved and adapted to the surrounding personal, social, political, economic, and cultural environment. The nature and definition of marriage is inextricably connected with the stability of society, and ultimately, human survival. Marriage and the family provide a necessary measure of order to procreation, the husbandry of future generations, and the transfer of assets and wealth. Yet, in earlier times, even as marriages were viewed as much social, political and economic events arranged by community elders or the family, the personal feelings and passions were close at hand, in Hillary Mantel’s eloquent depiction of the six marriages of England’s Henry The Eighth, in her prize winning book, Wolf Hall (2010). Every human partnership, marriage above all, always reflects a balance--- sometimes a precarious one---between emotion and business. As societies move from an agrarian to a faster paced, mobile, industrial and technological ethos, however, the nature of marriage also shifts. Especially in the Western cultures, marriage has become far more a private expression of personal choice. Especially in the 20th Century, health and medical advancements in birth control, the dramatic reduction of infant mortality, and the increased lifespan, have all combined to give individuals greater personal freedom. In the present day, there is greater social and political gender equality and the opportunity for more than one marriage in a life time, notwithstanding Henry the VIII’s example. The balance of the social purpose of marriage has shifted quite dramatically from being communal and predominantly about business to being about personal relationship, feeling and choice.

That is not to say evolutionary psychology and biology do not remain directly, even if unwittingly, relevant and apparent in the decisions made by both men and women about mating and marriage, necessitating a continued place and purpose for prenuptial negotiations. Women generally display an ingrained bias and attraction toward males that appear to be financially secure, capable, and prestigious, and prefer to “marry-up” the social ladder, as it were. Despite the shift to more romantic ideas of marriage, the press for the security and position marriage can provide is still strong. Men, for their part, are attracted and pursue women based on physical features that suggest suitability for child rearing. Such inclinations are seldom discussed openly but are nonetheless in play, and when such unstated expectations are not realized and discussed, disappointment and recriminations are common. (Fisher, Helen, Anatomy of Love: The Mysteries of Marriage, Mating and Why We Stray, 1992)

With the shift, discussions over the amount of a woman’s dowry are rare; if anything, the duty of a dowry has now shifted to the male, who is viewed as socially obligated to provide his fiancé’ with a suitable diamond engagement ring. Prenuptial agreements have fared little better. While they have retained a clear business purpose, especially in light of the number of second and subsequent marriages, requiring property allocation among several families and generations, prenuptial agreements over terms and conditions of inheritance and marital duties, are still viewed skeptically, if not with downright hostility. Treating marriage as a business arrangement, on almost any level, is taken as a disruptive sign of distrust.

In pre-marital negotiations, not unlike negotiations between people in any personal or business matter, there are personal and legal risks. Many commentators have provided thoughtful summaries of those issues. (Israel, Laurie, “Why Prenups Are Bad For Your Marital Health,” www.mediate.com/articles/IsraelL18.cfm, Oct. 2012) Their concerns are familiar ones, including the access of the parties involved to information, resources and advise, their relative ability to negotiate, and other factors of balance. And, as in all such circumstances, human decision-making and judgment is even more clouded by emotions than usual. Where prenuptial negotiations must contend with affection and trust biases, at the other end of a marriage, in divorce negotiations, there are commonly hurt, anger and distrust biases.

A marriage or long term relationship will obligate dealing with any number of significant business and financial issues for themselves, as parents, and for their family at the same time they maintaining their personal relationship. In fact, there are business considerations in every personal and family issue and emotional aspects in every property or financial matter. Personal communication skills are essential to foster the trust necessary to sustain the marital relationship but they are not sufficient; negotiation and business skills are of equal importance. A long-term relationship---certainly a marriage---is a dynamic and complex interactional system that has multiple levels and developmental stages. A linear, fragmented view of the relationship that attempts to separate the business from the emotional matters is not supported in theory or practice. However, because so many people associate negotiation with business matters, the process is dismissed as unnecessary, inapplicable, or contrary to the trust building and intimacy necessary to maintain a marriage.

In intimate relationships like marriage, differing approaches to issues, and levels of information, skill and resources are likely to be highlighted. Many of those differences are covered over by avoiding or deferring controversies over style of parenting or business decisions to keep the peace. And, culture and gender still play an important role in prescribing the responsible person for a given task; women, for example, often by default, retain primary responsibility for parenting decisions, and men, for family financial support. While these role associations have changed somewhat in recent decades, they remain largely intact. Curiously, for many married people, having assumed conventional gender roles, they have seldom discussed or negotiated business, financial and personal money management issues, retirement plans, or accumulated debt, until they are close to bankruptcy or divorce, nor have they discussed their views about parenting until there is a divorce in the offing.

Whether or not prenuptial negotiations result in a formally executed agreement, is less important than the value of engaging in the process. Just by doing so, the people involved increase their sense of control and ability to manage their own decisions and can fundamentally alter the nature of their future relationship. Negotiation serves an important purpose beyond merely concluding an agreement. The vitality of a marriage might well be gauged as much by the participant’s ability to effectively negotiate as by their ability to communicate. One does not necessarily presume the presence of the other. Negotiation is not the same as good communication; while the latter is essential, it is not sufficient. After the acknowledgement and validation allowed by communication, negotiation is skill of making the hard decisions and deals necessary to move forward. Unfortunately, few people are adept or have studied negotiation; counselors are not necessarily well versed in those skills. and to many, negotiation remains unseemly and at odds with a trust based marriage.

By contrast, some have come to recognize the place and importance of negotiation in marriage. John Gottman, a psychologist and highly regarded researcher in the nature of marital relationships, has highlighted the importance of managing conflict in his work, Why Marriages Succeed or Fail (1995). He has pointedly and realistically notes that relationship conflict is natural and has functional and often positive purpose, and further, that “managing” is different from “resolving” conflict. , This view clearly suggests the need for people in marriages to have not only capable communication skills, but basic negotiation skills as well. The most propitious time to begin learning to negotiate in a marriage is at the beginning, even before vows of commitment are given and taken.

The inclination to defer and avoid the discussion of hard issues is partially the result of the modern romantic ideal of marriage. Cognitive psychologists have observed peoples’ propensity to construct a focusing illusion of happiness, of which one of the most prevalent is the belief in marital bliss---the notion that marriage is associated with true love, which will last forever. This is a predictable form of irrationality that serves the useful purpose of motivating people to believe in marriage and is supported by a billion dollar plus wedding industry. Movies, event planning, jewelry, gowns, and honeymoon adventures, all perpetuate the belief and are designed to be the big bang start to a lifetime of bliss. Of course, those stuffy, ‘wet-blanket’ psychologists also suggest that “forever” blissful state has a more realistic lifespan of about 2 to 3 years. (Kahneman, Daniel, Thinking Fast and Slow, 2011; Benjamin, R.D., “Negotiating Happiness: Managing Peoples’ Predictably Irrational Focusing Illusions (Parts 1 and 2),” Mediate.com, 2012)

In the face of this romantic vision of marriage so closely associated with emotional commitment, love, trust and happiness, the business side of marriage is often forced to recede into the background. Yet, many marriages struggle and do not work, not because of an absence of sufficient love, but for the same reason most businesses and other partnerships succumb---- the stresses of limited money, resources, and an inability to effectively negotiate. Ironically, the negotiation process many consider to be at odds with trust, allows for exactly the kind of problem solving interaction that encourages peoples’ confidence in their ability to manage difficult situations. The thoughtful negotiation of seemingly mundane and practical business matters, personal values, habits and policies can significantly contribute to the intimacy and romantic vision of a marriage.

There is a compelling “rationally irrational” rationale for prenuptial negotiations and agreements beyond the cold rationality of them as strictly calculating business actions. Marriage, as much, or more than any other human endeavor, is associated with peoples’ pursuit of happiness. The idea of happiness is an emotional state of wellbeing concocted in the human brain, which must be negotiated internally by each person for themselves and with others. The construction of happiness, referred to by cognitive psychologists as a focusing illusion, is a non-rational process. (Kahneman, Daniel, Thinking Fast and Slow, 2011) This fits with what neuroscientists have likewise determined, that all decisions inextricably combine analytical and emotional brain functions and there is “no such thing as a cool-headed reasoner.” (Damasio, Antonio, Descartes’ Error, 1999) Therefore, not surprisingly, when conflicts arise in marriage---popularly referred to as betrayals or breaches of trust---they are effectively clashes between one person’s idea of happiness and the other person’s notion of how life should be. If the marriage is to survive, their respective ideas of happiness must be negotiated. Accepting the necessity of negotiation and learning the rudimentary skills of the process in preparation for marriage is not only useful, but also a positive and romantic support for the prospects of the relationship. Quite apart from insinuating distrust, the thoughtful discussion of difficult issues, from the beginning, be they business, financial, or parenting matters or values, all of which can be reasonably anticipated to occur in the course of a marriage, fosters the necessary confidence that builds trust and creates intimacy.

Paradoxically, a useful reflective question that those considering marriage might think about is how would it be to divorce this person? Effectively, the question reaches beyond trust and affection and into the realm of how well one’s prospective mate deals with difficult circumstances, which almost always require negotiation. The answer offers a measure of the resiliency of the relationship; the more assured one can be of the other person’s willingness and capacity to negotiate, the less likely there will be a risk of divorce. The health of a marriage is not about whether or not there is a pre-marital agreement, but rather, how willing, committed and skilled the people are in negotiating their respective ideas of happiness in their relationship. (Benjamin, R.D., “Negotiating Happiness: Managing Peoples’ Predictably Irrational ‘Focusing Illusions’,” Mediate.com, Nov. 2012)

A mediator who has a bias and presumes to a prenuptial agreement to be valid or not, can easily hinder or preclude the opportunity for pre-marital negotiations. This complicates an already developed resistance inasmuch as most people will not be inclined to negotiate for fear of spoiling the emotional bliss of an impending marriage. Being predictably irrational, they will likely tend to cover and disguise any doubts they might have with still stronger professions of love and trust in each other---and those around them will likely support their construction of reality. Sometimes, only an outsider, a mediator, for example, is best suited to sense and raise underlying issues for consideration.

Little could be more romantic to a marital commitment than the enhanced sense of resiliency a relationship gains by thoughtful discussion of important matters. Prenuptial negotiations and agreements when appropriate, can be an inoculation of a good habit early on for dealing with the inevitable difficulties people will face in any kind of partnership, be it in a marriage, a family or a business. While negotiations over finances may not be quite the same aphrodisiac provided by a candle-lit dinner by a fireplace, at minimum, they can facilitate the coming about of a real and grounded kind of intimacy that allows for the romance of a marriage to be maintained for the long term.

January 8, 2013

Biography


Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care. A lawyer and social worker by training, he practiced law for over 25 years and now teaches and presents professional negotiation, mediation, and conflict management seminars and training courses nationally and internationally. He is a standing Adjunct Professor at the Straus Institute for Conflict Resolution of the Pepperdine University School of Law, at Southern Methodist University’s Program on Conflict Resolution and in several other schools and universities. He is a past President of the Academy of Family Mediators, a Practitioner Member of the Association for Conflict Resolution, and the American Bar Association’s Section on Dispute Resolution. He is the author of numerous book contributions and articles, including “The Mediator As Trickster,” “Guerilla Negotiation,” and “The Beauty of Conflict,” and is a Senior Editor and regular columnist for Mediate.com.



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