Mediated Premarital Agreements

It has become increasingly common for people who are engaged to be marrried, or about to enter into registered domestic partnerships, to consider premarital or "prenuptial" agreements for all kinds of reasons. Many have suffered through an earlier dissolution, have children to protect, or have been affected by the shadow of someone else's high conflict divorce. They wish to minimize in advance the costs and acrimony of any potential breakup, and to secure basic rights and protections. Others report that having a clear understanding of their mutual rights and obligations reduces anxiety and supports the marriage.

Gay and lesbian partners may never have experienced a legal marriage. These people have been subject to systemic prejudices and understandably may hold values and expectations that differ from those of straight couples. In California same-sex couples are entitled to the same premarital protections and considerations as those who marry, including the right to organize and settle their financial rights and obligations in advance of becoming RDP's.

It is not that couples who enter into premarrriage agreements are predicting a dissolution - rather, before there is any discord or disagreement they wish to state their intentions and agreements clearly, and to create a mutually acceptable framework that assures a level of predictability.

At DFMS we believe that people are always better off if they themselves jointly determine their relationship circumstances, rather than having outcomes imposed by strangers - after the fact. Most people who marry or become RDPs have little understanding of the legal effects of innnumerable actions and inactions that occur after the legal relationship begins. These often include things that one or both did not foresee. If conflict erupts, In the absence of an enforceable expression of their original shared intent it becomes a scramble to see who is advantaged and who is disadvantaged. Moreover, California family law is exceedingly complex and is in a state of constant evolutionary flux. This is a recipe for financial and emotional disaster when relationships end, and leaves much to chance.

At the same time, premarital agreements that are not reached collaboratively can reflect naivete or an imbalance of power between parties eager to marry or become domestic partners. Discussions about them tend to feel awkward and embarrassing. Typicaly one party hires a lawyer to draft a proposal and the second party reviews it with their own counsel. Negotiation about and modifications of the agreement terms may or may not occur. Rarely are the parties evaluating or discussing their interests and concerns in a neutral, facilitated environment.

We believe a better paradigm is this: Premarital agreements can be developed, outlined, and tailored to fit each family with the assistance of a neutral third party mediator. Pre-marital agreement co-mediation with our LAFMS mental health experts may also be appropriate where the parties have or anticipate having children, particularly for gay and lesbian couples who lack certain protections under the law as it relates to parenting and non-biological children.

Mediated premarital agreements must be reviewed by independent counsel to ensure that each side is fully advised by an advocate in order to comply with California laws affecting the validity of prenuptial agreements.

We invite you to consider whether achieving a fair and open understanding and agreement early on concerning the legal attributes of your marriage or RDP makes sense for you.