Having written previously about what a prenuptial agreement is (and isn't) and how a prenuptial agreement can lay the groundwork for a successful marital partnership, I now turn to the question of how to get a prenuptial agreement, looking at four processes available to engaged couples. Because many people considering prenuptial agreements are early in their earnings careers, cost is often a significant factor in which process they will choose. Therefore, I discuss the four process options in order of increasing cost. However, as you will see, there are important reasons why cost should not be the driving factor!
1. Do It Yourself
The simplest, most cost-effective way to attempt (note the emphasis) to prepare a prenuptial agreement would be to write up the whole thing yourself. Theoretically, you and your partner could type up a list of all your agreements, put the words, "Prenuptial Agreement" at the top, and sign it. Indeed, I have been contacted by potential clients asking me to review a document they prepared in exactly that manner.
In Massachusetts, a prenuptial agreement prepared in this manner is very likely to be invalid and unenforceable.
Each state has its own requirements for what goes into making a prenuptial agreement valid and enforceable. I discussed Massachusetts' particular requirements in my Massachusetts Prenuptial Agreement Primer on this blog. Of particular note here are the financial disclosure and waiver requirements.
Financial disclosure — Each party to the agreement must make a full financial disclosure to the other before signing the agreement. Any experienced family law attorney or mediator will have a detailed financial disclosure form to be used for this purpose, and will work with the client(s) to ensure that the disclosures are full and accurate. Couples who prepare a prenuptial agreement themselves run the risk of either failing entirely to make the disclosure or omitting important information.
Waivers — In part, a prenuptial agreement is intended to supercede state laws. Therefore, it's critical that each party to the agreement understand what those laws are, and be able to provide informed consent to waiving the rights and obligations they might otherwise have under those laws. A couple that prepares a prenuptial agreement themselves, in the absence of legal guidance, is extremely unlikely to be able to draft the appropriate waivers and provide informed consent. Indeed, in DeMatteo v. DeMatteo, the SJC explictly cited "whether each party was represented by independent counsel" as one factor in determining whether a proper waiver was made.
2. Online Forms
There are websites — you've probably heard of them — that purport to offer free or low-cost legal forms for everything from leases to wills, and yes, prenuptial agreements. I have seen some of these forms, and they simply don't do the job they're supposed to do. The problem is, any defect in a prenuptial agreement is a potential source of conflict down the road, and some of the defects in these forms are signficant. Along the same lines as what I wrote above, the waivers in some of these forms are severely lacking. At a minimum, they often don't make specific reference to the relevant Massachusetts statutes implicated in the prenuptial agreement. In the worst case — and I have seen this myself — an important waiver is completely lacking, such as a waiver of statutory alimony rights. That's a huge problem if you want the agreement to be enforceable!
As I mentioned, I have seen some of these forms. People sometimes ask me to review and propose edits to prenuptial agreements that they prepared using online forms. I am willing to do that, but I do alert anybody asking me to do so that the final cost will likely rival what it would have cost to have me prepare the agreement from scratch. That's because reviewing and correcting somebody else's mistakes is a time-consuming process. That time would be far better spent meeting with me and discussing how I can prepare a document that best meets your needs!
So, while a form prenuptial agreement is almost certainly better than one you prepared yourself from scratch, you still run the risk of having an agreement you can't rely upon — and if you involve an attorney, the chances are that you won't actually save much money, defeating the main purpose of using an online form in the first place.
3. Prenuptial Agreement Mediation
As I've written before, a prenuptial agreement is like an insurance policy — a document that you want to have, but hope you'll never actually need. It's also a document that you're preparing at a particularly joyous and optimistic time of your lives, so it's important that the process you choose support that attitude, rather than put a damper on it. Mediation can serve that purpose.
With a skilled mediator, you and your partner have an opportunity to discuss and prepare a prenuptial agreement together, face-to-face, in a mutually loving and respectful environment. The mediator's experience will allow them to provide helpful legal information and guide you through the important decisions you need to make. Many mediators (particularly those with legal backgrounds), can also draft the prenuptial agreement for you. As an added bonus, while you and your partner work through the process of preparing a prenuptial agreement in mediation, you are practicing communication about finances, which can be invaluable to the marriage's long-term success.
In addition, an experienced mediator will be able to provide you and your partner with referalls to mediation-friendly attorneys, who can provide independent legal advice and review the agreement before you sign. A mediation-friendly attorney will generally support the decisions you make during mediation, and won't attempt to revisit those decisions unless there is a pressing need to do so. As discussed above, the fact that you've consulted with an attorney will help to make the agreement valid and enforceable under Massachusetts law.
In terms of cost, there's no question that going the mediation+attorney route is more expensive than either of the first two options. In addition to the mediator's fee, you will need to pay the mediation-friendly attorneys for their time reviewing and discussing the agreement with you. However, it is also a wonderful combination of a respectful process combined with the assurance that you're signing an agreement that you can rely upon in the worst-case scenario.
If cost is still preventing you from choosing this option, think back on the insurance analogy. How much faith would you place in an insurance policy that you wrote yourself? What about an insurance policy that somebody offered you either for free or a bargain-basement price? You should treat any important legal document as one that requires the attention of an experienced professional, and a prenuptial agreement is no exception.
4. Attorney-to-Attorney Negotiation
I mentioned that I've ordered these options from lowest to highest cost, and you might be wondering why two attorneys is less expensive than two attorneys plus a mediator. The answer is very simple: reaching agreement on the terms of your prenuptial agreement is the most time and energy-intensive part of the process, and also the one where a mediator can introduce the most savings. With a mediator, you're paying for only one professional's time to work out those details, during which you and your partner can discuss everything face-to-face.
In contrast, working exclusively through lawyers is like a game of telephone: you tell your lawyer what you want; your lawyer communicates that information (more or less accurately) to your partner's attorney; and that attorney then discusses your message (again more or less accurately) with your partner. In addition to the possibility of miscommuncation, you also lose out on the opportunity to talk about the issues in-depth, respectfully, face-to-face. There is a lot of inefficiency built into that process!
Just as importantly, your choice of attorney will have a huge impact on the emotional impact of the process. Lawyers have a duty of "zealous advocacy" to their clients, which many attorneys read as a duty to get the absolute best financial outcome. In family law, including prenuptial agreements, there is far more than money involved. Yes, you are making financial decisions, but you are also trying to respect each other's emotions and foster an atmosphere of long-term commitment and partnership. That atmosphere is seriously threatened if one or both lawyers become positional and the process becomes adversarial rather than mutually supportive.
Choose a Process That Works
At this point, it should come as no surprise that I strongly encourage couples to consider the mediation+attorney option. In my view, it is the most respectful and mutually supportive option, and helps prepare couples for a successful marriage. However, you can also get to a valid and enforceable agreement through some of the other options — with the significant caveats that I mention above. Ultimately, what matters is that you choose a process that you're comfortable with, and which gives you a solid prenuptial agreement that you can rely upon.