You may have heard of divorce mediation, but what is a mediation clause in a prenup? Well, it’s a clause you can add (or not add) to your prenup agreement that requires you and your future spouse to go to mediation in the event of a divorce instead of going right to court. This article will explore mediation clauses, their benefits and drawbacks, how they are drafted and enforced in California prenups, and more.
What is mediation?
Mediation is when a neutral third party, known as a mediator, helps two or more parties to resolve a dispute or negotiate a settlement. The mediator doesn’t make decisions or impose solutions but instead facilitates communication and understanding between the parties. Mediation is often used in family law cases, such as divorce, prenups, child custody, and visitation disputes.
What is a mediation clause in a prenup?
A mediation clause is a provision in any type of contract (not just prenups) that requires the parties to try to resolve any disputes or disagreements through mediation before going to court. In the context of a prenup, a mediation clause requires the spouses to attempt to settle any issues related to the divorce through mediation before pursuing litigation in a traditional courtroom setting.
For example, the mediation clause may say something along the lines of, “if any disputes involving this prenup and/or future divorce arise, we agree to attend two mediation sessions before filing in court.” Of course, that’s not the exact language that it will say in your prenup, but it will be something similar (but with much more legalese).
Why would someone want a mediation clause in their prenup?
Including a mediation clause in a prenup has several benefits.
First, it encourages the parties to communicate and negotiate in good faith, which can lead to a more amicable and less contentious divorce if the marriage ends.
Second, mediation is generally faster, cheaper, and less stressful than litigation. Why? Because you are attempting to work out issues without paying thousands in legal fees and without someone making the decision for you.
Third, mediation allows the parties to have more control over the outcome and to reach a mutually satisfactory agreement. Remember, the mediator does not make decisions for you; they simply help you and your partner come to an agreement.
Fourth, mediation can help preserve confidentiality and privacy, as the proceedings are not public. If, for any reason, you don’t want your divorce or the issues at hand to be put on public record, then you may want to try to work things out in mediation to avoid that.
The drawbacks of a mediation clause in a prenup
There are also a few drawbacks to mediation clauses in a prenup.
First, mediation may not be appropriate or effective in all cases, especially if one or both spouses are unwilling to negotiate or compromise. For example, if you and your ex-spouse are especially emotional and adversarial towards each other, mediation may not get you anywhere.
Second, mediation itself is not legally binding until you put it in writing and/or ask a court to enforce it, meaning that the parties may still need to go to court to enforce the terms of the agreement if there are issues down the road.
Are mediation clauses in prenups valid in California?
Yes, mediation clauses in prenups are generally valid and enforceable in California. In fact, including a mediation clause in a California prenup can provide a less costly and contentious way of resolving disputes related to the prenup. However, it is important to ensure that the mediation clause meets the legal requirements and that both parties fully understand the implications of including a mediation clause in their prenup. Let’s dive into what those requirements look like in California.
The legal requirements for a valid and enforceable prenup in California
Mediation clauses may be a good choice to put in your prenup… as long as your prenup is also valid and enforceable. If your prenup is not valid and enforceable, there is no way to enforce the mediation clause in your prenup.
So, how do you make sure your prenup is valid and enforceable in California?
- Put the contract in writing
- Make sure the terms are lawful and not unconscionable
- Make sure there are signatures from both parties (HelloPrenup recommends initialing each page)
- Make sure both spouses sign the contract voluntarily (without being under duress, intimidation, deceit, etc.)
- Make sure your signatures are notarized
- Make sure you both fully disclose all financial assets, debts, and income
- If the agreement provides for spousal support in any way, each party must have had representation at the time of signing the agreement in order for that provision to be enforceable.
- Both spouses should be represented by their own separate attorneys. If one or both spouses choose not to have legal representation, they must sign a written statement of waiver (HelloPrenup offers this waiver as an option in your California prenup)
- The 7-Day Rule: There must be at least seven calendar days between the presentation of the final version of the prenup and when the spouses sign it.
The above requirements are for any California prenup, not just one that has a mediation clause. It’s important to understand that if you don’t meet the above requirements, you could risk having your prenup thrown out. If your prenup is thrown out, then you do not have a requirement to attend mediation before litigation.
How to draft a mediation clause in a prenup
Now, you really shouldn’t have to worry about this section if you hire a family law lawyer and/or use a state-compliant platform like HelloPrenup. With that said, you may still be curious as to what goes into a mediation clause in a prenup.
The mediation clause may specify the following:
- The scope for which the mediation may cover (e.g., any matters related to the divorce only)
- The process for selecting a mediator, such as by mutual agreement or through a court appointment
- The time frame for initiating mediation, such as within 30 days of a dispute arising
- How will the costs be split (will one person pay, or will both spouses split the cost)
- The number of mediation sessions required before one party may file a legal action in a court
- And potentially other things, depending on your situation
The role of a mediator in divorce mediation
So, what exactly does a mediator do in mediation? The mediator’s role in mediation is to facilitate healthy communication and negotiation between spouses. The mediator does not legally represent either spouse and does not make decisions or impose solutions. The mediator’s goal is to help the spouses reach an agreement that they are both comfortable with.
The cost of prenup mediation
The cost of prenup mediation can vary depending on several factors, such as the complexity of the issues, the experience of the mediator, and the location of the mediation. Generally, prenup mediation is less expensive than litigation, as it does not involve court fees, expert witness fees, or lengthy legal proceedings. For example, the average divorce mediation from start to finish may cost anywhere from $3,000 to $8,000. Compare this to the average divorce through litigation which costs anywhere from $15,000 to $20,000.
Mediation versus litigation in a divorce
Mediation and litigation are two different approaches to resolving disputes in divorce proceedings. Mediation is a collaborative process in which the spouses work together to reach a mutually satisfactory agreement with the help of a neutral third party (i.e., a mediator). Litigation, on the other hand, is an adversarial process in which the parties present their case to a judge who makes a decision for them.
Litigation can be much more costly, timely, and stressful than mediation. Lawyer fees tend to be much higher than the cost of a mediator. Not to mention, the waiting times for court hearings and other court-related appearances can take months or even years. Mediation sessions can be planned and resolved in a matter of days (if you and your partner can come to an agreement). The adversarial aspect of litigation can make the divorce even more stressful than it already is, compared to the collaborative approach of mediation, where you come together to make decisions.
Mediation versus arbitration in a divorce
Arbitration and mediation are both types of alternative dispute resolution. Both are “alternatives” to traditional litigation in court. They both can be cheaper and faster than litigation.
On the other hand, there is a major difference between mediation and arbitration. In arbitration, there is a final decision that is rendered by a third party on your issues. In mediation, there is no final decision on your issue; you and your partner have to come to that conclusion yourself.
For example, let’s say you are arguing with your spouse over who should get the house. In arbitration, the arbitrator will make this decision for you. In mediation, a mediator will help facilitate productive communication between you and your ex to come to the decision yourselves.
Frequently Asked Questions (FAQs) about mediation clauses
If you’re still unsure of how mediation works, see below for some frequently asked questions about mediation clauses in prenups.
Q: Who pays for prenup mediation?
A: The spouses can agree on who will pay for prenup mediation in the prenup itself. Usually, people agree to split the cost equally between the two, but it is possible to agree for one person to pay the whole cost of mediation.
Q: Can a mediator provide legal advice during divorce mediation?
A: Generally, no; although a mediator may actually be a lawyer themselves, a mediator cannot provide legal advice to either party during prenup mediation. That is why each party should have their own attorney to advise them on their legal rights and obligations.
Q: What types of issues can be addressed through divorce mediation?
A: Prenup mediation can address a wide range of issues related to the prenup, including but not limited to property division, spousal support, debt allocation, and inheritance rights.
Q: How long does prenup mediation typically take?
A: How long a prenup mediation takes depends on the complexity of the issues and the willingness of the parties to compromise. However, prenup mediation is typically faster and less expensive than litigating disputes in the traditional way through a court.
Mediation clauses can be great additions to your California prenup as long as you create a valid and enforceable prenup. The benefits include spending less money and time than you would on a traditional court-litigated divorce and having more control over the outcome of your assets. There are very few drawbacks, but one may include spending money on mediation when you aren’t able to come to a conclusion with your partner because of the adversarial nature of your relationship.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]