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Mediated Prenuptial Agreements Benefit Couples and Mediators

by Michael Toebe
May 2014 Michael Toebe

The romance might be lacking in the thought and decision making but there could be relational wisdom in pursuing mediated prenuptial agreements and valuable marketing awareness as a byproduct for mediators.

Couples often spend significant time planning a wedding, buying a house and cars, financial planning and how to best raise children, so a reasonable question that begs asking is why don't most marrying partners plan for better outcomes in the event a marriage eventually dissolves?

The reality is between 40-50 percent of first marriages end in divorce, according to different studies listed at DivorceStatistics.org, 60-67 percent of second marriages end up breaking apart and 70-73 percent of third marriages fail.

How many of those couples planned for that ending? Did they foresee attorneys, the typical adversarial parting of the ways, litigation and anxiety in their future when they said “I do?”

Not planning for that strong statistical possibility of divorce and the resulting complications could be a form of denial, as in “it won't happen to us.” Maybe it is considered poor form. Or is it more a lack of awareness to smarter decision making?

“One person's pragmatism is another person's pessimism and prenuptial agreements cross that line for many people. This is the reason I hear most frequently,” says Rackham Karlsson, a Cambridge, Mass. family law mediator and collaborative attorney.

“I think a prenuptial agreement can be compatible with romanticism, though. Instead of protecting yourself, think of it as protecting each other from unnecessary acrimony in the event of divorce,” Karlsson says. “From that perspective, a prenuptial agreement is an expression of mutual respect, not distrust or pessimism.”

When loving feelings are strong and trust is dominant, the idea that divorce is a possibility doesn't enter one's thinking so protective safeguards for each other are not pursued. A prenuptial agreement, mediated together is not seen as an insurance policy, likely because prenuptials have never really been discussed or written in the media with the word “mediated” in front of the word. The cultural perception is that a prenuptial is the domain of the wealthy and viewed as a mood killer, lack of trust and insulting.

The couples, in most instances, at least in first marriages, also haven't yet invested years together, sacrificed much, accumulated property and income and had children together.

There is also this stereotype that prenuptial agreements are coercive, which Karlsson says doesn't have to happen.

“Done right, getting a prenuptial agreement does not necessarily have to be a one-sided or adversarial experience,” he says.

The reasoning being the couples decide together, while they are in a healthier and more willingly collaborative emotional state, how they wish to take care of themselves in the event their marriage doesn't last a lifetime. They can each consult with separate attorneys before signing a document, that the couple created themselves and had full say on, not a judge.

Many marrying couples don't know this service and divorce insurance, per se, is available. The law doesn't require marrying couples to be educated on it either, leaving alternative dispute professionals with work to do in creating awareness and market buzz.

Karlsson recommends couples interested in prenuptial mediation to see a mediator together and decide if they are both comfortable with that practitioner. From there, that professional should be able to recommend trusted attorneys for independent legal representation on the sidelines as a review.

“These are attorneys who will respect the parties' autonomy to make their own decisions, even if it is not necessarily 'what a judge will do” he says. “You have to choose the (attorneys) on that list very carefully. The last thing you want is to hire an attorney who ends up being an overly aggressive bargainer; that is not how you want to start your marriage.”

A long-term benefit of this approach is the invaluable practice of negotiating through an uncomfortable relationship issue and creating awareness of the mediation process and profession.

“Getting a prenuptial agreement through mediation is a great way for couples to take ownership of their relationship right from the start, and demonstrate that they are willing to work through tough issues face-to-face, respectfully” Karlsson says.

“It might also help couples to recognize the value of consulting with professionals who are trained in communication and dispute resolution.”

Biography


Michael is a conflict management specialist, serving businesses and individuals in strategically, effectively gaining deeper understanding of conflicts and disputes and working through them more protectively and wisely.



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