Even intermediaries can be insensitive to power imbalance within the parties when they help clients negotiate a marriage agreement. Mediators should be very aware that the agreement proposed by the “two parties” can really only be the idea of one and that the other party feels obliged, although it does not admit it. All motivations and feelings must be disclosed and discussed in mediation before the procedure. Marital negotiations are generally one-sided, but “disguised” to claim that there are considerations on both sides for the treaty. “One of the license plates to determine if a prenup is “fair and reasonable” at the time of execution is whether a party had a lawyer at the time of the document`s trial,” says Shemin. “Personally, if I am the mediator, or if I represent one party, I insist that the other party have advice. That is the general practice. The parties can work with a mediator or lawyer to develop it – but each party should/must have its own advice (if not legal, then discerningly). As prenups are subject to national law, although this may vary from state to state, they are generally considered the most prudent and privileged practice. Marriage is a mixture of complicated laws, customs, expectations and cultural understanding. A pre-marriage contract will unexpectedly disrupt this balance and inevitably have unintended consequences.
National divorce laws can address issues of income differences and inequality of pre-marital property when spouses are divorced. Avoiding a court at the expense of an agreement that might make marriage breakdown more likely may not be a reasonable compromise. It is a common factual pattern that I often see: the future spouse does not want a marriage agreement, but his parents insist. A marital agreement is reached. The woman feels that her husband could not resist his parents and loses all respect for him. The parties argue over marital agreements in the courts; Marriage contracts themselves do not eliminate legal disputes.