Disclaimer: This article does not constitute legal advice. If you have any questions about your individual situation it is best to seek the advice of an experienced legal professional.

Reports from the American Association of Matrimonial Lawyers say that more Millennials than ever are asking for prenups. Millennials are getting married later, and choosing to marry and divorce differently. They are using divorce mediation to “consciously uncouple.” They are using therapy and marital mediation to stay married, and they are using prenups to draw up a contingency plan in case their marriage runs into trouble. The negative stereotypes surrounding prenups (and postnups) – that they are materialistic, paranoid etc. – are being busted by couples who are seeing them as a way to start an honest conversation about the realities of marriage.

So what can this new honesty mean? Does it just mean that couples are getting down to material brass tacks and framing their marriage in less romantic ways? Well, prenups aren’t always about material things. “Soft clauses” in prenups, which are less legally binding, are also being included in prenups. An interesting example is this couple’s stipulation that they will try at least three therapy sessions before giving up on the marriage. Prenups can include a whole range of things – from protecting family heirlooms to how to treat each other with respect in the event of a divorce. Prenups (and postnups), are not written on tablets of stone, however. They can be challenged. What gives a prenup a better chance of succeeding is making it a fair agreement that both parties feel they have a stake in upholding. In our mediation practice, identifying different interests through tools like game theory can give partners a satisfying sense of ownership over their own choices, which leads to mutual benefit.

If you are divorcing in 2019, there are some issues you could confront that could make your divorce more difficult. Millennials are mediating prenups to prepare for dealing with any of the situations that follow (and many more):

  • Pets – People are attached to their pets, but the law is slow in catching up. In most jurisdictions a pet will be treated like property. The pet could be the property of the person who paid for it, even if emotional attachments run deep. Pet prenups are gaining increasing popularity.
  • Intellectual property – Intellectual property is often difficult to define and in 2019 perhaps more than ever, as couples may collaborate on creative, technological or business endeavors, perhaps in the melee of a home office. Casual conversations over a cup of morning coffee can lead to huge creative leaps, which is why defining what belongs to who may be crucial to avoid conflict.
  • Family items or items with sentimental value – it’s often the least valuable things that lead to conflict. It’s the grownup equivalent of a child fiercely protecting a worn out doll. Your family heirloom could be a sideboard or it could be something like Kurt Cobain’s guitar (Frances Bean Cobain fought her ex-husband to get back the priceless guitar). It could be a fixture in both people’s lives until suddenly it’s not there anymore. Or it could be a valuable piece of jewelry that could one partner would want to split. Or a gift that one partner wants back. Making agreements about these items are conscientious and caring ways of avoiding future conflict.
  • Reproductive technology – A huge new frontier for conflict is couples who part ways and still want to reproduce using stored embryos that they created together. It’s extremely important to be on the same page about potential new life that could be created, as courts take this issue seriously. However if you mediate your prenup in good faith and commit to your choices in advance, the potential for conflict can be decreased.
  • Personal and mutual growth clauses – Prenups could include getting help for an addiction, agreeing to behave gracefully in the event of a breakup, going to therapy to save the marriage or agreeing to coparent responsibly regardless of the relationship. These might not be legally binding in the event of a challenge, but they can be powerful incentives to aspire to a better behaviors.

Who We Are and How We Can Help

We are caring, well-educated mediators who are skilled in applied financial mathematics, the law psychoanalysis, and game theory. We strive to efficiently comprehend your situation and its opportunities for sustainable and agreeable resolution. This may include a review of your parenting plan, spousal support calculations, community property equalization, settlement agreement, and all other aspects of your case. Any resolution you come to will be informed by a deeper analysis of the conflict that can be psychoanalytic and/or more financially-focused. We also offer marital mediation and mediate prenuptial and post-nuptial agreements. Marital mediation is goal oriented, time limited, and practical, and often results in clearly written agreements that are private, but can also be drafted as postnuptial agreements with legal significance if needed. The goal of mediation can also be a mutually beneficial and clearly understood prenuptial or postnuptial agreement. Our high-level divorce mediation services are tailored to the needs of people with complex lives or divorces that may be difficult or protracted. We can intervene to break litigation deadlocks when divorces are already underway. We work with individuals from several cultures and countries, and can help with national and international relocation issues associated with divorce. You can visit us at our offices in Campbell, CA, Irvine, CA and San Diego, CA. We can also be reached by Telephone, Zoom or Facetime. We are available 7 days a week and at urgent notice. Please contact us to see how we can help.

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