The best way to negotiate a prenuptial agreement or cohabitation agreement

From time to time, I have clients who are about to get married and contact me in order to negotiate a prenuptial agreement for them. I also have had clients who are about to live together or are already living together and would like a cohabitation agreement in place. Having negotiated many of these agreements over the years, I wanted to comment on the best way, in my opinion, to negotiate an agreement. I will refer to these agreements as "prenuptial agreements" below, but please understand that I am also referring to cohabitation agreements.

Just so we are clear -- a prenuptial agreement is an agreement that two parties sign before they get married regarding issues such as property division or support, in case they separate in the future. In order for a prenuptial agreement to be valid and enforceable, both parties need to get independent legal advice from their own lawyers. Many clients are surprised that they need two lawyers in order to enter into a binding prenuptial agreement. In fact, because each party's interests are adverse in law, when it comes to negotiating an agreement, lawyers are necessary in order to ensure that each party knows how the agreement will affect their legal rights in case they separate.

The traditional way of negotiating a prenuptial agreement is for each client to retain a lawyer and for the lawyers to negotiate on behalf of the clients. The hope is that the lawyers are going to speak nicely to each other about something that is unpleasant -- what each party will get in case they separate in the future -- and come up with the terms of the prenuptial agreement. The last thing the lawyers want to do is to create a ridge between two people who are very much in love and want to get married -- but it does happen! Part of the problem is "broken telephone" when speaking through lawyers. Another part of the problem is the divide that is created between the couple because they are not being encouraged to talk to each other about the legal issues, and only to their lawyers.

I have found the most successful way to help clients to negotiate a prenuptial agreement is to encourage them to do the negotiating in the same room with a mediator. The couple will meet with the mediator and discuss the reasons why they want a prenuptial agreement, the couple will be encouraged to talk to each other about the issues, the mediator will provide general legal information about family law, and hopefully, the mediator will end up drafting a comprehensive prenuptial agreement. The parties to the agreement will still need to get independent legal advice from their own lawyers, but most of the work will have been done by the clients and mediator alone before the lawyers are involved. This is also a process that is less expensive than having lawyers involved right from the beginning because the parties are only paying for one professional (the mediator) to work with them, instead of the two lawyers. Most importantly, it's a friendlier, more personable process.