Prenuptial Agreement Consultation

You want a prenuptial agreement consultation. You are no longer asking yourself the question “prenuptial agreement yes or no”. You know that a prenuptial agreement makes sense. But how do you get the right advice and what is the ideal process?

An Overview:

Prenuptial Agreement Consultation by Notary

The prenuptial agreement consultation can be conducted by a notary. A marriage contract must be notarized. So why not go directly to a notary? After all, they also provide advice.

It is true that notaries provide mediating advice. They do not advise individual spouses partially on which rules best protect their interests. The notary is obliged to be neutral. If they notice that the (future) spouses need legal advice, they usually refer them to legal counsel, meaning each to their own lawyer.

Notaries are also sometimes not particularly interested in prenuptial agreements. This applies especially when they are expected to assist with the drafting phase, not just notarize the agreement. Why is that? It’s due to the fee schedule. Notaries can only charge the fee stipulated by law for notarization. It doesn’t matter whether the notary invested little or a lot of time in drafting the prenuptial agreement. Furthermore, notarizing prenuptial agreements is paid less than, for example, real estate transactions. How motivated is a notary to choose their desk and meeting room over the law firm and golf course if there’s no financial incentive for their work? All too often, a generic draft is pulled from the drawer and adjusted only slightly.

Of course, there are also notaries who take their role seriously, even with prenuptial agreements. However, this might be more common with existing good clients or those who promise further business. It’s simply human nature to want to use one’s time as profitably as possible, isn’t it?

Prenuptial Agreement Consultation by Lawyer

Lawyers also, of course, advise on prenuptial agreements. As mentioned, notaries often send spouses to lawyers so that each partner can receive advice representing their own interests. This can also be of particular importance if the prenuptial agreement is later to be recognized abroad.

Lawyers advise spouses in their own interest. They provide recommendations on which interests should be secured from the client’s perspective in case of separation and divorce.

Naturally, the lawyer on the other side proceeds in the same way when advising on the prenuptial agreement.

Negotiations follow. Sometimes, so does resentment. Lawyers are trained to secure the best legal solutions for their clients, which may, however, be the worst legal solution for the client of the opposing lawyer. The opposing party will react accordingly.

Many lawyers active in family law work more cooperatively because they know that in the context of marriage and family, it’s not just about money. It’s also about avoiding disputes, the well-being of the child, and maintaining family cohesion. Therefore, soft factors also play a role in drafting a prenuptial agreement.

What both Lawyers and Notaries Must Consider During Prenuptial Agreement Consultation

Without a certain degree of fairness, a prenuptial agreement can quickly become wholly or partially invalid. Precisely because a prenuptial agreement is special and marriage is protected by the Basic Law, courts examine these matters closely. Is the prenuptial agreement very one-sided? Was a spouse’s weaker negotiating position exploited? Is the prenuptial agreement valid, but have circumstances changed so significantly since its conclusion that it may need to be adjusted or even discarded?

Therefore, lawyers, just like notaries, must ensure during their prenuptial agreement consultation that the agreement is not invalid. The mere fact that it is notarized only satisfies the formal requirements. However, what is written in it is also crucial…

Alternative Approaches to Prenuptial Agreement Consultation by Mediators

We understand that many couples want to work on their prenuptial agreement together, with full transparency and in a cooperative atmosphere.

These couples are therefore generally also open to drafting a prenuptial agreement through contract mediation.

If the mediator is also a lawyer, they can contribute with legal information and their wealth of experience (so-called advisory mediation).

A similar procedure in prenuptial agreement consultation is when a lawyer advises only one spouse but also listens to the other, answers their questions, and thus creates the desired atmosphere of openness (so-called mediation-analogous consultation).

In our experience, this alternative approach to prenuptial agreement consultation works very well in most cases. A key reason is that couples usually correctly assess whether they want to discuss all questions openly and in the presence of the other spouse.

In mediation-analogous consultation, it is also possible for one spouse to be initially advised by a lawyer, with the other spouse then joining a later session. Of course, the latter can also be accompanied by their own lawyer.

The Typical Process of a Prenuptial Agreement Consultation

The spouses seek legal advice. The lawyer either advises one of the spouses, drafts an agreement, and submits it to the other spouse’s lawyer.

If the other spouse is not legally advised on the prenuptial agreement, a notary appointment can be organized immediately.

The notary may conduct a preliminary discussion with the spouses prior to notarization. This is often the case when not both spouses have received legal advice.

The prenuptial agreement is notarized. The notary ensures that both partners understand the rules (by reading them aloud and answering questions).

If the partners are not proficient in German, the spoken word must be interpreted during the notarization appointment. Some notaries also notarize in other languages; however, it is usually advisable to declare the German version as binding, as it aligns with the court language in Germany. This leads to fewer interpretation issues and is generally always the better solution.

Why Pre-Drafted Prenuptial Agreements from Spouses Offer No Advantage in Consultation

Every lawyer and notary is pleased when spouses know the most important terms related to prenuptial agreement consultation and roughly understand what they mean: marital property regime, spousal maintenance, and pension equalization.

However, drafts by spouses or couples that are based on online documents and adapted to their own needs are usually not helpful.

The actual draft usually doesn’t significantly impact the cost of the prenuptial agreement. It’s more about what actually needs to be regulated. The core of prenuptial agreement consultation lies in identifying these needs, advising on them, and then drafting the agreement accordingly. As mentioned, the prenuptial agreement and its rules must also be balanced, which is central to the consultation. And those who frequently advise on prenuptial agreements prefer to work with their own clauses rather than remodeling those they find in external drafts that don’t match their wording and style. This also takes longer and usually makes it more expensive.