Most couples marry without a prenuptial agreement; however, even if the couple does not create a prenuptial agreement, they are in essence getting a prenup when they marry, because the entire family law code is now embedded in their relationship. Couples who marry in a community property state have in essence formed a partnership with terms that were never negotiated. Other than the parties’ mutual agreement to marry and their wedding vows, there is usually no specific “meeting of the minds” on the specific terms and conditions of the marital relationship. Their marital agreement is also going to be impacted by societal values, norms, and laws that often change during the marriage.
Marriage is not an “arms-length transaction.” It is based on intimacy and emotions. A marital contract is based on romantic, social, and emotional attachment. Unlike business contracts, the majority of marital contracts are unwritten, implied, ambiguous, and undefined, and they grow and evolve from a patchwork of implicit agreements. Most marrying couples have only a vague sense of the legal rules that apply to their marital contract. It is only when they want to break the marital contract, when they want to separate from their spouse that they realize that even though the marital agreement is unwritten, it is a contract with vast legal implications. Unlike entering a business arrangement where the rules for ending the contract are thoroughly negotiated and often spelled out in advance, the ending of a marital contract is not. The surprise that couples often experience when they decide to divorce and learn the implied rights and obligations that will now be applicable to their divorce and the termination of their marital relationship can be as debilitating to those who wish to proceed amicably with the divorce process as to those couples where high-conflict dynamics will be part of the divorce process.
Whether you have a prenuptial agreement or a marriage that is subject to all the implied terms of the Family Law Code, mediation offers you more flexibility and control over the outcome of your divorce. Learn more about the terms and conditions that you agreed to when you exchanged your wedding vows and how to use mediation to terminate your marriage by contacting New Day Divorce.