Judy Barber

Both parties must feel they are getting something out of the agreement. Good intentions may be undermined if the non-moneyed partner's needs aren't understood.

Whether for a first marriage or a return to matrimony after the death or divorce of a spouse, romantic feelings are tested when a prenuptial agreement is part of the preparation for marriage. These agreements are the toughest mediating I do.

Each time I consult with a couple as they face each other, their parents, and often a cadre of advisors, I wish there were ways to make the process easier. I'm not sure there are easy solutions. But I know that when a couple approaches the agreement with honesty, deep regard for each other and sensitivity to the potential emotional and financial implications, it can help strengthen and sustain the relationship through a difficult time. Without this conscious effort, the union can be shaken to its foundation, creating irreparable misunderstanding and distrust. How can couples stay connected?

Keep in mind that at the time two people are committing themselves to marriage, each wants to feel like the most important person in the potential spouse's life. Yet in reality, they are signing what may become a divorce agreement. This is tough! Idealistic and hopeful couples harbor a secret belief that the emotional bonds and loyalty between them will protect them from the dangerous shoals. Yet, the prenuptial agreement symbolizes an allegiance to something other than the relationship: to a family, to assets or heirs. This devotion to something other than the relationship may feel so alien that it seems unreal. Lawyers are often maligned in these situations because they take what feels unbelievable and make it real.

Risking the conversation is essential as a couple approaches this process. Most often, both people feel vulnerable. The person initiating the document may do so out of a painful past experience, from anxiety regarding the future of a business or assets if there were to be a divorce, or from family pressure. The person who is asked to sign may have fears about the partner's commitment or his or her own financial security. Both may fear losing the relationship if too much pressure is exerted or if one refuses to sign. When I ask couples what makes it so hard to talk to each other, the response is often, ‘I'm afraid I'm going to learn something about you I haven't known and may not want to know.'

The more moneyed partner rarely talks about the impact - what it's like to carry the burden of financial responsibility. He or she may wish the other would contribute more financially, even if the contribution is more symbolic than substantive. Few share with their partner the underlying fear of being taken advantage of. The less moneyed partner (who has less sense of financial autonomy) may feel at the mercy of the other who has money. He or she may feel shut out of the process of setting financial priorities.

The person with greater financial resources usually initiates the "pre-nup." This built-in financial inequity can contribute to an imbalance of power in the relationship. I recently had a discussion with a woman who initiated a prenuptial agreement and who is in a long and successful marriage. She felt it was her responsibility to have the document but said, "There can be no real agreement. The document is unfair in that it creates an imbalance of power." At the time her spouse signed, he felt he had "no choice" - that "fighting it would have created a huge crisis that {he} wouldn't win."

The woman told me, " He knew it would have triggered questions in me about my trust in him and his motivation, questions I couldn't have answered at the time.” She went on to say that, "The person who has the money also needs to look at the issues provoked by the agreement – lack of trust, power and control.”

'Pre-nup' Guidelines

Never present a prenuptial agreement when there's been no mutual discussion. Even when it is clear from the beginning of a relationship that certain assets and income will remain separate, presenting the document as a fait accompli feels inequitable and may result in a refusal to sign.

Both people must feel they are getting something from the agreement. It is an understanding between two people. The person initiating the document gains protection. The person agreeing gets, at least, clarification. His or her financial situation must be discussed: How does he or she gain financial independence and security or create a net worth? Is it through a percentage of income set aside as separate property for the purpose of investments? What happens if both agree that this person won't continue to work? Is there to be any transfer of assets or regular income? In many situations, this is truly taboo.

The person with less money does not want to appear greedy; alternatively, he or she may assume that, with time, the moneyed spouse will offer to help create financial autonomy. For the person with the money, raising the issue may bring up distrust and suspicion of the partner's deeper motivation for the marriage. Yet without looking at the non-moneyed partner's options and gaining an understanding of those financial needs, the good intentions both people bring to the commitment may well be undermined.

Solutions to this problem are highly individual. Situations can quickly become adversarial. The attorneys are fighting it out over how much income or assets the non-moneyed partner should receive. As things escalate, the amounts can get outrageous by the standards of everyone involved. I ask the person who requests the income or assets, "How old is your relationship? Based on that, what do you feel is fair?" That often (not always) takes it out of the realm of debate.

In these situations, a variety of advisers are often brought in - accountants, investment managers, trust officers and other trusted family advisers. However, the greatest potential for emotional damage is in the drafting of the document. The role of the attorney is critical to positive outcome, but it is not an easy task.

Bring in the attorney after an initial discussion together. To the extent possible, know that you want going into the first meeting. The attorney's job is to explain all the ramifications and to be informative regarding state laws. Discussing the desired goals before the first meeting sets the tone for the attorney and enables him or her to create a document that can meet those objectives.

In the initial discussion with the attorney, emphasize the importance of the relationship. Since the lawyer's job is to protect the interests of his or her client, the attorney drafting the document cannot represent both parties. In some situations a couple can hire one attorney to draft the document. Each then seeks separate counsel to make sure his or her interests are represented. This works well, particularly when there is little or not disagreement.

When each person has his or her own attorney, it must be emphasized from the first meeting that there is to be no acrimony. It's key for attorneys to be sensitive to this issue because the language in these documents is, by nature, hostile. Sometimes the language in correspondence between attorneys and the couple questions the motivation of the people involved in such an inflammatory way that it fuels distrust and resistance to the goals. At times it's necessary to protect a client, but adversarial positions can tear at the fabric of the relationship.

Talk to each other, not through lawyers. Sometimes, a couple may feel that it is less difficult to express their needs through counsel. But there is potential for misinterpretation and misunderstanding. Recently I spent an hour helping a couple unravel feelings about a transfer of assets. Because they had communicated through lawyers, there is confusion about the initial request and subsequent events. They were each resentful over what they thought the other wanted.

Emphasize expediency to all advisers. Feelings fester. Ask those professionals involved to keep the process moving along. Can their calendars be cleared to complete the work in a timely way? The vulnerability this sensitive subject causes makes it essential to complete the process without unnecessary delays.

Once the agreement is completed, it's often hard to talk about it. Yet if a couple can discuss their good work and share things they wish they had done differently or said more diplomatically, they can apologize and let it go - then celebrate, strengthened by the experience.

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