DON’T get a mediated prenup if you are this couple
Mediation is a great tool to create a prenup through a “teamwork” environment. Moreover, the process strengthens the bond between partners as they clarify expectations of each other and of the future.
While some “prenup-in-a-can” sites allow clients to rush through a life-altering contract in 24 hours, our online mediation meetings compel participants to consider the outcome of their decisions well into the future, which is critical when discussing assets that may take years of labor to acquire.
At JustPrenups, our proprietary mediation process creates checkpoints to ensure the following:
Thorough disclosure by both parties that conforms to Florida’s “full and frank” disclosure standard.
Documentation of satisfaction by both parties with the disclosure process.
Emphasis on the duty to update information in the disclosure process, which may be a sticking point in divorce court years later.**
Ascertaining, validating, and witnessing both parties’ sober, voluntary, informed decision to sign the prenup.
Maintaining neutrality while posing questions derived from years of experience in mediation, counseling, and litigation.
Despite all the advantages of mediation to create your prenup, there are some groups who are not suited for mediation. These groups should instead choose representation, which involves the traditional lawyer-client relationship: specifically, an attorney advocates for the interests of only one party.
The following four groups are usually not well served by mediation:
1. The partners are in a marriage of convenience.
They are not bonded in love and the resulting trust, and they are usually not involved with each other over a period of time in which each partner learns the other’s pattern of behavior. These people need the protection of a lawyer’s advocacy.
Otherwise, mediation rests on mutual respect and a trust bond between the parties that compels them to protect the welfare of the other person.
2. The partners possess uneven power.
Mediation requires an equal playing field to ensure that both partners have the same bargaining power.
There will always be differences between partners, but some of those differences set the stage for uneven negotiating power. In some cases, age can be a huge power differential, but not always. Education can create a power difference, depending on what the person has studied. Another example: couples in which the spouse is the employee of the other spouse, as the employee spouse may not speak freely in mediation if the person is anxious about job status.
3. The partners have a history of domestic violence, stalking, harassment, etc., and they have since reconciled.
Both parties in this situation are better served by an attorney who can look out for the interests of the respective party.
Unfortunately, the layers of trauma may influence the mediation process negatively.
4. One partner is an attorney.
Imagine the imbalance when one party comes to the table with extensive knowledge of contract basics and with training in negotiation and argument skills. While both partners may acknowledge the difference in knowledge and the resulting differences in related abilities, they may not fully grasp the impact on mediation.
Rather than risk a compromised mediation process, the parties can best protect their interests when each side hires an attorney. Both sides should be able to call upon years of legal training rather than only one side through occupation.
Other situations may call for representation as opposed to mediation:
In general, if one or both partners have significant legal issues such as pending litigation or tax problems, the couple may not be the ideal candidates for mediation. An attorney’s representation can offer more comprehensive, directive guidance in finalizing a prenup draft.
If one of the partners is resistant to the idea of a prenup, mediation cannot work at all, as both parties have to be voluntarily engaged.
If you have already tried to mediate your prenup and failed, your mediation is likely to fail again because there was no opportunity to resolve areas of disagreement.
JustPrenups offers both mediation and representation, as you may work with a mediator or with an attorney licensed in Florida.
If you aren’t sure whether you need mediation or representation, a free Zoom consultation can clarify what is best for your situation.
Warning: All posts on this website contain general information about legal matters for broad educational purposes only. This information is not legal advice and should not be treated as such. This blog post does not create any attorney-client or mediator-client relationship between the reader and JustPrenups.
**Hello there, your prenup’s content and the process used in its creation are both evaluated by your family law judge if you and your partner divorce. Your judge may consider tossing your prenup if you observed poor practices in your drafting, disclosure, and signature processes because you decided not to use pros at prenups and postnups.
