Many people, often entering second marriages, wish to have a premarital agreement. They may wish to “protect” the premarital assets they have, or provide for any child/ren from a previous relationship. There are no “right or wrong” ways to draft a premarital agreement. However, in my…
opinionthe terms should be based on the parties’ respective values about important financial issues: ownership of premarital assets or debts; how income earned by either or both after marriage should be handled; and how assets and debts should be divided at the death of one party, or in the event they separate or divorce. In choosing a process to work out their premarital agreement, in my opinion, parties should use a process which supports and allows them to discuss their respective values with each other and, if necessary, work out compromises between them regarding any conflicts or differences in their values.
Often, one or both parties to a marriage want to have a premarital, or prenuptial agreement. This may happen if it is a second marriage for one or both, or there are children, significant assets or debts. I’ve worked with two approaches to the preparation of a premarital agreement. In one approach, one party (often the party with more assets or income) hires an attorney and tells that attorney what terms should be in the agreement. The attorney drafts the document for the party, who then shares it with the other party. The second party then takes the draft agreement to another attorney for review and explanation. If the second party or attorney wants revisions to the agreement, typically the “negotiation” about the terms of the draft agreement and any revisions is done between the attorneys, and not the parties.
The other approach I have worked with is using the collaborative model, in which both parties hire collaboratively trained attorneys before anything is drafted. There is an exchange of financial information and documents, and then one or two meetings to discuss the parties’ goals and concerns for their premarital agreement. There are no “right or wrong” ways to draft a premarital agreement. However, in my view, the terms should be based on the parties’ respective values about ownership of premarital assets or debts, how income earned by either or both after marriage should be handled, and how assets and debts should be divided at the death of one party, or in the event they separate or divorce. When the parties reach agreement on these issues, one of the attorneys drafts the premarital agreement for review and discussion by the parties and their attorneys.
I think the collaborative approach to a premarital agreement is more supportive of the parties’ marriage than the first approach described above. It encourages each of them to identify and think about their own values regarding money, assets, debts and income, so that they can openly discuss and share these values with the other before they marry. If their values differ on an issue, it allows them assistance and a safe space to discuss their differences, and work out compromises they can both accept. They then are able to enter their marriage with “eyes wide open” about where their values about finances align, and where they differ.