The Supreme Judicial Court of Massachusetts on July 16, 2010 answered in Ansin v. Craven-Ansin the long-deferred question of whether a marital agreement should be recognized. The answer is “yes.” Their reasoning centers around the spouses’ freedom to contract, “permitting the parties to arrange their financial affairs as they best see fit.”

This case gives great impetus to the efforts of some family mediators to expand their practice to include innovative arranging: helping couples stay married. Laurie Israel and I have been training family mediators to expand the menu they offer their couples to include this constructive direction.

“Is there a possibility that you might want to try to stay married?” is a worthy question, asked in the right tone of voice at the right time, even to the most warring couples who somehow end up in your office. You often have no idea what they are really thinking, and most couples will not be offended by the question properly asked. One of them might even say, “What do you mean?” and you should be prepared to answer, “The law allows you to enter into contracts to change the terms of your marriage if you want.”

There are legal concerns about these contracts, of course. They must be free of fraud and coercion, and each spouse has to have her or his own lawyer review it before signing. The Ansin case (SJC No. 10548) treats marital agreements differently from pre-marital agreements and separation agreements because the spouse attempting to save a long existing family relationship is in a “radically different situation” from the bride or groom, and “opportunities for hard dealing may be greater,” quoting the ALI Principles of Family Dissolution. Divorcing couples may look to their own future economic interests since they are no longer hopeful of saving a troubled marriage. Cases in Arizona, Florida and Tennessee all approve these agreements as long as they meet basic standards of fair dealing, including such factors as:

• each had the right to counsel,
• no fraud or coercion by either,
• total disclosure of all finances,
• total waiver of going to court and
• the terms of the agreement are fair and reasonable.

“All we do is give people a place to talk.” That great definition of mediation, from a vigorous Academy of Family Mediators discussion back in about 1985, has shaped my mediation practice ever since. The couple, given this place to talk, should be able to talk about whatever they want. The mediator wants them to make informed decisions, and that should include the possibility that they exercise their freedom of contract to redefine the terms of their marriage. “We want to replace Marriage No. 1 with Marriage No. 2,” said one couple recently as they signed their Marital Mediation Agreement in my office.

Family mediators should become much more aware of the potential benefits of adding marital mediation to their practice. You are not practicing therapy when you help couples exercise their freedom to contract, any more than you are practicing law when you help them listen to each other. Laurie and I have both worked with couples who have tried therapy and given up, or worked with lawyers and not been able to agree, and their success in mediation is traceable in part to their own readiness and in part to the power of the mediation process itself. In a safe and informed setting they explore what a Marital Agreement might say about their future financial arrangements, which could even include estate planning, as well as division of future child rearing or household responsibilities or even basic rules of courteous conduct. It’s up to them, hooray. It’s up to you to be ready, willing and able to help them if you want.

See the court’s full legal decision

                       

John Fiske

Partner in Healy, Lund and Fiske, now Healy, Fiske, Richmond, & Matthew, since September 1, 1979. From being lawyer and mediator about half and half in the beginning, I am now about 99% mediator and 1% lawyer. I also conduct mediation trainings. My wife and I took our 3 children,… MORE >