Premarital Agreements

Premarital Agreements 35
approach to resolving differences
in which a neutral third person
helps the parties identify their
differences, consider their options,
and structure an agreement
acceptable to both parties
Collaborative law
an approach to reaching agree-
ments and resolving differences
that stresses cooperation, joint
problem solving, and the avoid-
ance of litigation
A party has an interest in a family business that he or she wants to “keep in
the family.
A party is responsible for taking care of third parties such as elderly parents
or siblings with disabilities.
One of the parties is pursuing a degree or license in a potentially lucrative
field such as medicine, and the other party will be supporting the couple
through an extended education program.
The parties have been out of high school for several years, remained single,
and had an opportunity to accumulate significant property.
One of the parties is giving up a successful career in order to be a stay-
at-home parent.
One or both of the parties have children or grandchildren from a previous
One of the parties is involved in a speculative business venture that may
result in a significant increase or loss in wealth.
One or both of the parties want to ensure a new spouses inheritance,
especially if that spouse will lose his or her right to a social security benefit
or alimony from a prior spouse upon marriage.
One or both of the parties suffered through a prior divorce that was
emotionally and financially devastating, and they do not want to repeat
the experience.
The more common premarital contracts become, the less sensitive a topic
they are for couples approaching marriage. The usual approach to creating an
agreement is that the parties first discuss the possibility of executing an agreement
and their reasons for doing so. Then one of the parties (customarily the one with
the greater incentive and the most to gain) selects an attorney to draft an agree-
ment. The other party ideally retains a second attorney to review the agreement,
recommend revisions, and advise him or her before signing. Occasionally the
parties will utilize traditional mediation to resolve their differences concerning
the proposed terms of their agreement. A neutral third party, the mediator, helps
the parties clarify their differences, consider options for addressing them, and
structure an agreement acceptable to both parties.
An additional alternative approach to reaching consensus involves use of the
less adversarial collaborative law process. It affords an effective method for devel-
oping premarital agreements tailored to the unique circumstances of the two peo-
ple about to be married. When the collaborative law process is used, “the written
agreement is prepared last and only after the partners have discussed the issues
and concerns important to them and their shared life, and have reached shared
agreements about those concerns. The collaborative agreement becomes a mutu-
ally developed blueprint for the marriage.
Although the parties still have to
address challenging questions and require the assistance of specially trained coun
during the process, the difference is that the collaborative process provides a safe
and supportive setting ...and...enhances the couples togetherness rather than
emphasizing their separateness.
A premarital agreement is both a contract and an agreement between two parties
who bear a special relationship to each other. Unlike contracts negotiated in the
business world involving strangers who deal at arms length, a premarital agree-
ment is a contract between two individuals presumably engaged in a relationship
of mutual trust and confidence. Given the couples special relationship, courts
M02_WILS3688_01_SE_C02.QXD 8/7/08 4:18 PM Page 35
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