In my Massachusetts Prenuptial Agreement Primer, I described some of the legal criteria for preparing a valid and enforceable prenuptial agreement in Massachusetts. Here, I go one step further and describe five important reasons to consider hiring a mediator to prepare the agreement.
1. It costs less to mediate a prenuptial agreement.
Let's get this one out of the way early. If you negotiate your prenuptial agreement exclusively through attorneys, you will be paying each of them to negotiate on your behalf. That means for every phone call your attorneys have with each other, you are paying two hourly rates. Factor in the time for each attorney to circle back with their respective clients (i.e., you and your spouse-to-be), and the costs can add up quickly. While I do recommend that every couple seek independent legal counsel when getting a prenuptial agreement (more on that below), you can save a lot of money by hiring a neutral mediator to facilitate negotiations and prepare the first draft of the agreement.
2. You decide what is fair and reasonable.
As I described in the Primer, the legal bar for a "fair and reasonable" prenuptial agreement is not very high; the DeMatteo court held that a prenuptial agreement is not "fair and reasonable" only if "the contesting party is essentially stripped of substantially all marital interests." However, you are very likely to have your own sense of what would be "fair and reasonable" in the event of a divorce, regardless of what the law says. A facilitative mediator can help you and your spouse-to-be discuss those personal values openly, so that you can reach an agreement that YOU would consider "fair and reasonable."
3. A mediated prenuptial agreement is less likely to be contested.
It is no secret that negotiated agreements have much higher compliance rates than court orders. Every prenuptial agreement is, by definition, a negotiated agreement, but I will go one step further and suggest that the manner of negotiation makes a difference, too. Every experienced family law attorney has heard somebody challenge an agreement that they signed, on the grounds that they "just signed the agreement their attorney put in front of them," or "didn't understand what they were signing." This type of complaint is much less likely to arise if the client has a significant role in negotiating the specific terms of the agreement. Unlike lawyer-to-lawyer negotiation, the mediation process helps ensure that you and your spouse-to-be are active participants in the negotiations and are fully aware of what you are signing. Thus, in the event of a divorce, you will both be that much more likely to comply with the terms of the agreement, rather than attempt to contest it.
4. You can (and should) still have independent counsel.
A mediator is a neutral facilitator, and as such, he or she cannot give you or your spouse-to-be independent legal advice. However, hiring a mediator does not mean that you are giving up your right to independent counsel. In fact, because consultation with independent counsel is one of the factors that a judge would consider in determining whether a prenuptial agreement is enforceable, I encourage each of my mediation clients to hire an attorney to obtain independent legal advice, and provide them with a list of mediation-friendly attorneys in the area. Your attorney can play as little or as large a role as you like, but at a minimum should review the draft agreement with you and make sure you understand any legal rights you might be waiving.
5. A mediated prenuptial agreement is less coercive.
The prototypical "bad" prenuptial agreement is the one presented to you on the eve of the wedding, which you had no hand in preparing, where tomorrow's wedding is conditioned on you signing it as-is. Due to the coercive nature of this type of agreement, a Massachusetts court would almost certainly find it to be unenforceable. However, this cannot happen if you hire a mediator to prepare your prenuptial agreement. Instead, you come to mediation as a full participant in the negotiation and drafting process, and do not sign anything until you are fully satisfied with its terms. Nothing is presented to you unilaterally. Performed correctly, mediation is a non-coercive process that levels the playing field for you and your spouse to mutually determine the provisions of your prenuptial agreement. (That said, sometimes the idea of a prenuptial agreement does not arise until it is too late to prepare one before the wedding. In that situation, you can still hire a mediator to prepare a postnuptial agreement after the wedding.)
Nobody wants to cast a legal cloud over their big day. Once you understand the factors that go into preparing a valid and enforcable prenuptial agreement, and realize the potential pitfalls of lawyer-to-lawyer negotiation, the benefits of a mediated prenuptial agreement are quite clear. Mediation is a chance for you and your spouse-to-be to determine the provisions of your prenuptial agreement together, demonstrating to each other the same kind of mutual respect and understanding that you hope to carry with you throughout the marriage.