Your Post-Divorce Plan: Negotiating a Prenuptial Agreement

“Negotiating our prenup was so painful that the experience tainted our whole marriage.”

“I thought we had agreed to what was going to be in the prenuptial agreement, but this agreement is so aggressive...how could he/she let the attorney write this?”

“We just wanted a simple prenup, so why do we have this very long contract that I don’t understand?”

These are just a few of the unfortunate comments I’ve heard from clients about their prenuptial agreements through my 25+ years of practicing as a collaborative attorney and mediator in New York. The decision to have a prenuptial agreement is often fraught with feelings of anger, fear, embarrassment, sadness and stress at a time when the couple only wants to feel utter excitement and hope for their future together.

In my view, the process by which couples negotiate the terms of their prenuptial agreement greatly contributes to their happiness with the decision to have such an agreement, and with the ultimate substance of that agreement.

The traditional process of drafting and signing a prenuptial agreement typically starts with the party who wants the prenup most retaining a divorce attorney who then meets with the client alone. Perhaps they speak at length about what he or she wants (or perhaps not), and the attorney drafts an agreement which includes most of the aggressive marital assets will accumulate during the marriage, there will be no spousal support if they divorce (even after children), and both parties waive all rights under New York law to inherit from each other.

The client usually does not fully understand the practical implications of the agreement and presents the draft to his or her fiancé. Once the fiancé retains his or her attorney to review the draft, the fiancé becomes upset by the onerous and often unfair terms and conflict ensues between the couple. Perhaps this is the first big dispute between the couple, occurring right before the parties are to marry. This is not a good recipe for a satisfying process.

The process in working on a prenuptial agreement should be the reverse of the scenario described above. It begins with both parties discussing and negotiating the terms of their prenuptial agreement together in one room (or on Zoom), either with two collaborative attorneys or with a mediator before any agreement is drafted. Basic New York divorce law and estate law should be reviewed, so the couple knows the range of solutions if the parties divorce or die in New York...