Mediating Prenuptial Agreements -- How Do You Control the Future?

From time to time, particularly in the spring, I get inquiries from couples who want my help as a mediator in negotiating a prenuptial agreement. Typically, the wedding date has been set several months down the road and either the bride or groom want an agreement to protect assets brought into the marriage from eventual distribution to his or her partner should there be a divorce down the road. In a community property state like Washington, this is a legitimate concern if the bride or groom are bringing significant property or inheritances into the marriage and want to prevent commingling of separate and community assets.

At the outset, I congratulate couples for involving a mediator in discussing a very sensitive subject at a very sensitive time. Discussing possible failure of a marriage during an engagement defines a difficult conversation, even with the help of a skilled mediator.

From the standpoint of a family law mediator’s goal of a durable agreement that will stand the test of time, the issues are challenging. The draft agreement may go well beyond property brought into the marriage, stipulating that most, if not all of the earnings during marriage, will also be deemed separate property not subject to division between the spouses should their marriage fail. Further, the power balance so important in effective mediation is difficult to measure with so much emotion involved. The couple is very much in love, trusting each other to be fair even though the proposed agreement may be very one-sided.

For these agreements to fulfill their promise, they must be fair to all concerned. Attempts to restrict the number of months or years of spousal maintenance depending on the number of years the marriage lasts don’t work very well if the disadvantaged spouse is destitute after a long marriage. A provision that the earnings of husband and wife during the marriage are to be deemed separate property instead of community property can have tragic consequences. For starters, there is no opportunity to build up a community estate to be shared by husband and wife. A high earning spouse can be nurtured for many years by a low-earning or non-working partner. The latter could be left high and dry should the couple divorce.

So I suggest that soon-to-be newlyweds resist the impulse to try to predict and over-control their financial futures. The unintended consequence might well be an agreement that is contested should a divorce ensue. Instead, leave room in the premarital agreement to build a community estate – to share the rewards of each spouse’s financial and non-financial contributions to the marriage during the marriage. Keeping this goal in constant sight will help achieve a durable agreement – the key deliverable for a successful mediation.