Traditionally, the request from one of the spouses or intended spouses for a Premarital Agreement was the beginning of a painful process that often drove a wedge between two people who were supposed to love each other. It was handled only by attorneys, and the process began with what was usually an extremely one-sided draft being presented by the requesting fiancé or spouse as a fait accompli to his or her fiancé or spouse. The attorneys then exchanged and battled over drafts of the “Agreement,” creating a “we-they” situation that felt adversarial and threatening, building mistrust and disharmony in an otherwise secure marriage or on the eve of what was supposed to be the happiest day of parties’ lives. Often, the spouse being asked to sign a Premarital Agreement felt that the Agreement was being forced on him or her and felt mistrusted, unprotected and uncared for by the other spouse. The spouse requesting the Premarital Agreement then interpreted the reluctant spouse’s objections as being greedy and selfish.
Even if the request itself did not create this atmosphere of mistrust, the ongoing battle between the attorneys robbed the couple of their own voice, and made what should have been a joint planning process into an adversarial one. Many simply succumbed to the exhaustion of the process and signed in the end “just to be done. ”Mediation and Collaborative Practice are tailor-made for drafting Marital and Cohabitation Agreements, as mediators and collaborative attorneys are trained in mediation and interest-based collaborative negotiation. These processes encourage both parties to develop their goals for the relationship and one another, and to take one another’s concerns and goals into account. These two processes are also well suited in that the parties create and draft their Agreement together, more as a planning process than an adversarial one.