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A Dirty Word Or A Saving Grace?

By Ty Supancic, Esquire

I regularly help couples design and build foundations for the most important project in their lives. The work is long and involved and at times unpleasant, but I believe the results are worth it in the long run. We take the time to examine and investigate their dreams and circumstances, and using that information, we design and create a strong foundation together which will support whatever they chose to build on it. If what they build together fails sometime in the future, it will not be for lack of planning.

No, I’m not a contractor or an architect. I’m a family law attorney and the “foundation” I’m describing is a mediated premarital agreement.

“Premarital Agreement” and “Pre-Nup” are dirty words in the common vernacular, but I believe this is due to misunderstandings based on Hollywood propaganda and sensationalistic news coverage. Premarital agreements need not be unilateral documents forced by one spouse upon another. The alternative to the Hollywood stereotype, and the vast majority of the premarital agreements we draft in our office, is a premarital agreement reached by mutual discussions and assent to terms designed to support marriage and discourage divorce.

At the most basic level, people get divorced because they’re “unhappy.” Unfortunately, statistics tell us that divorce does not bring happiness. Studies reveal that most people are just as unhappy after their divorce as they were before it. But in addition to being “unhappy”, after divorce they’re also damaged; emotionally, spiritually, and financially.

Despite this reality, people get divorced anyway. Why? I believe people are “playing the odds” or gambling on a different future. People know what they have, and they think they’re unhappy. They don’t know what things will be like after their divorce, but they figure, “it can’t get any worse.” They’re wrong. They’re trading known circumstances for unknown circumstances on the misguided premise that things will be better. They seldom are. Remember the old Irish adage, “Better the devil you know than the devil you don’t.”

Of course, I’m not talking about cases with domestic violence or emotional abuse. Victims of abuse should always remove themselves from abusive situations. But the vast majority of divorce does not involve domestic violence. The “unhappiness” is based on circumstances far more mundane and would often be preventable with action and planning.

Experts tell us that disagreements over finances and what those disagreements represent are a leading cause of divorce. So a failure to engage in deep and detailed conversations about money and the mutual expectations of the parties, can lead to conflict later. However, a well written premarital agreement which addresses areas of potential conflict can serve as a form of “divorce insurance” by providing couples with a clear picture of what is expected of them during marriage and what things would be like after their marriage.

Since communication issues are far and away the greatest affective issue contributing to divorce, having the conversations necessary to draft a premarital agreement are a critical exercise and skill which couples must develop if they wish to maintain their marriage in the long term. We find that sometimes these discussions are best initiated and mediated in premarital counseling by a mental health professional who can work in conjunction with the mediating attorney.

Therapists can guide couples in discussions which explore their expectations about how things are going to be during their marriage. The discussions can cover big issues like having children, and seemingly small issues like public displays of affection. Without describing and discussing expectations, parties rarely cover all the issues which can later create great conflict. Areas where the parties have congruent expectations may serve as a good foundation for drafting the premarital agreement.

When the premarital agreement is complete, the parties know what the outcome of their divorce would be in advance. It removes the mystery and any lure of the unknown. Reviewing the agreement during tough times might reveal a future less attractive than the fantasy born of resentment and low-grade dissatisfaction. This can make working on the marriage a more attractive alternative to simply giving up. “I know what things are like now. Oh, our pre-nup says this is what it will be like if we get divorced… hmmm, that’s not any better. Perhaps I, perhaps we, should take a second look at making this marriage work.”

A well written Premarital Agreement can also embody and proclaim a couples’ promises and devotion to each other. Consider it like “fine print” for the vows. Promises that expand on and define the vows the couple make publicly. Perhaps too mundane for broadcast during the ceremony, but something the bride and groom wouldn’t mind sharing during the reception. Jewish wedding ceremonies have included a reading of the couples’ premarital agreement, or “ketubah”, for thousands of years, so while this concept may not be revolutionary, it is powerful.

Premarital Agreements can include “anti-divorce terms” such as agreements about mutual respect for personal appearance and physical fitness, or agreements about the frequency of romantic getaways. Basic agreements regarding values for raising children and spending quality time with the family can be discussed and included. Terms may also include mandatory marriage counseling and a “couple’s vacation” before filing for divorce, with consequences imposed for refusing to comply. Not all of these agreements may necessarily be enforceable in a court of law, but the simple act of discussing these issues and memorializing your agreements is useful when planning a relationship for the long-term.

I used the term “relationship” as opposed to marriage because parties can also negotiate and execute mediated “Living Together Agreements.” Such agreements may cover the same basic issues and expectations; how is rent divided, how are household chores divided, will one party be responsible for paying bills and finances, or do the parties plan to keep things separate? All important discussions to have before entering into any relationship with legal consequences.

Of course, with legal consequences come myriad complex legal issues involving statues and the case law governing such agreements. For that reason, it is critical that parties who wish to create such an insurance policy do so with the aid and oversight of a qualified attorney focused in this particular field and trained in consensual dispute resolution. While an attorney with a traditional practice might be fine for a unilateral, winner-take-all pre-nup, they often lack the expertise and subtlety required to mediate couples in love who are not looking for a fight.

Married couples often tell me, “Oh, we don’t need a pre-nup, we’re not getting divorced.” I always hope they’re right, but the truth is; not only are the odds against them, but they DO have a pre-nup — it was written by the State of California and it’s called the Family Code. The paperback version is almost 2000 pages long. On the other hand, they can opt out and write their own personal agreement which embodies their hopes and values. The mediated premarital agreements prepared by my firm are often under 20 pages.

If you have questions about any of these ideas or issues, I would encourage you to contact a family law attorney with a practice focused on Collaborative or Mediated Premarital Agreements. I’m certain they would be happy to help spread the good news about what shouldn’t be a dirty word.

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