At times, mediation clients may seek the services of a mediator who is not practicing within their state. Or the couple may each reside in a separate state, and one of those states (or even a third state) is where they initially plan to reside after they marry. Another variable is the “choice of law” provision in the prenup, which could be still another state.

With the availability of Skype, Facetime, and other digital video conferencing programs, clients in various locations can meet with their attorneys and with mediators without being constrained geographically. The choice of law location should have a “nexus” or connection with the marriage, at least at the outset. But sometimes people start their marriages in one location and end up living in another.

Mediators are supposed to be process facilitators, and are not permitted to give legal advice. Having said that, mediators do need to be substantively informed of the laws of the jurisdiction which laws are being applied to the prenup and/or the laws of the jurisdiction the party some of which might be waived in the prenup. This applies to non- attorney mediators and attorney mediators.

If you do choose an out-of- state mediator because of the qualities you seek in the mediator, do expect that the mediator will spend some billable time getting familiar with the laws of the states that impact the prenup in order to have the substantive law experience to assist you in your determining the terms of your prenup.

Laurie Israel
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