That may sound like a strange thing for a divorce attorney to say. Yet I feel comfortable in saying that if more couples used mediation to create a prenuptial agreement prior to getting remarried, more second marriages might last.
According to HealthResearchFunding.org, between 67 and 80 percent of second marriages will end in divorce. That’s a staggering amount and we could theorize all day long about why. In my professional opinion, many second marriages fail because of the first marriage.
That does not mean if you’re planning to remarry that you’re still in love with your ex. It means that with divorce, particularly when children and financial assets are involved, comes certain commitments and obligations. Often times, people enter into a second marriage either without knowing or seriously considering what those commitments and obligations are at the time of the second marriage and what they will or might be in the future. This can create turmoil if not addressed prior to the second marriage. And that’s why I strongly encourage people who are marrying for a second time to consider mediating a pre-nuptial agreement with their spouse before entering into the marriage.
Before getting into the reasons for mediating an agreement rather than having attorneys draft something up, let’s discuss why you would want/need a prenuptial agreement.
First, the obvious. People entering into a second marriage are older and are more likely to have accrued assets. Some of those assets you may want to leave/save for your children from the first marriage. For sake of example, let’s say a vacation home. A pre-nuptial agreement for a second marriage might state that the vacation home will belong to the person who brought it into the marriage rather than being divided in the event of a divorce. This would preserve the vacation home for the children of the first marriage. The same could be true for a savings account that is intended to be applied to college expenses for the children of the first marriage.
People entering into a second marriage are also more likely to have obligations for alimony, child support, life insurance, and/or college expenses. Although these can’t be changed by a prenuptial agreement, they might impact other financial arrangements between the parties.
A common reason for entering into a prenuptial agreement before any marriage is to protect a family business of one of the spouses. Many parents are afraid that transferring ownership of a business that they began to their children will create a risk of the business being divided up in a divorce. Often they will insist that their child and future spouse sign a prenuptial agreement to prevent the ex from making a claim to the business should the marriage end in divorce. The same would hold true for second marriages.
Why mediate a prenuptial agreement? Similar to mediating a divorce, pre-nuptial mediation requires both parties to prepare financial statements disclosing their income, assets and liabilities. Each party will express his and her expectation about what should happen with those assets and liabilities in the event of a divorce or when either party passes away. The parties will also discuss what should happen to any assets acquired during the marriage as well as issues around future child support and or alimony if the marriage ends in divorce.
By disclosing financial information and their respective financial expectations, the parties will have a much clearer understanding of where each of them stands before entering into a second marriage. I believe that this kind of detailed financial disclosure and discussion will go a long way towards getting the second marriage off on a good foot. Although it is true that it is not necessary to mediate a prenuptial agreement in order to have this kind of disclosure and discussion, in my experience it seldom happens. Much like in divorce mediation, the mediator becomes the catalyst for the discussion.
Why not just let your lawyer write something up? Also like divorce mediation, I find that a mediated prenuptial agreement can be truly customized to the unique situation of the parties. In the case of our vacation home example, perhaps the couple negotiates that if the marriage lasts a certain length of time—let’s says 10 or more years—that the vacation home then becomes a marital asset.
In another case that I had, one of the parties was giving up a job and moving to another state in order to get married. In that instance most of the discussion was around the issue of alimony for the moving spouse if the marriage failed. In other cases, such as a family business, the parties might choose to not address the issue of alimony at all.
When lawyers draft prenuptial agreements their primary goal is often to make sure that everyone keeps their own assets before, during and after the marriage. That may not be the right approach for you. Mediation will encourage you to think about and discuss what you are trying to accomplish. That said, just like in divorce mediation, both parties should consult with an attorney and have their own attorney review any agreements prior to signing.
The true beauty of the prenuptial mediation is the air of transparency it brings. While the nature of the mediation may be finances, it truly forces couples to look at other issues that will be involved in the second marriage—e.g. the schedule of visitation of his/her/both children; future offspring and how that fits into wills and inheritances; any debt either party brings into the marriage; how the new family plans to manage their day-to-day finances.
By having these issues front and center, it lessens the likelihood of surprises during the marriage. Mediating a prenuptial agreement also diminishes the possibility of bad feelings that might be experienced by the prospective spouse receiving a completed pre-nup from his or her fiancé because they are both part of the discussion rather than one party dictating all the terms as would be the case with a pre nuptial that was not mediated.
Does that mean all it takes for a second marriage to last is a pre-nuptial agreement? If only. Yet it can slow down the process and force couples to lay all the cards on the table, which is usually a good thing—especially if it makes for a lasting second marriage.