A Great Weight Can Be Lifted: Another Advantage Of Marital Mediation


by John Fiske

January 2010

John Fiske This article has three points:

1. Premarital Agreements do not have to be rushed to completion two days before the wedding.
2. Couples about to marry can define the terms of their marriage in a legally binding Marital Agreement entered into without any time pressure AFTER the wedding, free of any later judicial concern that someone was coerced by the time pressures of the imminent wedding day to agree to something (s)he did not want or otherwise unfair.
3. Marital Mediation is a great way for family mediators to help couples define terms of their marriage in a legally binding contract, and there are training opportunities available for family mediators to learn more about this new application of their mediation skills.

“John, I feel like a great weight has been lifted and I am just so happy to know that I am actually getting married on my wedding day; thank you!” I received this email from the future wife on December 27th, who first contacted me about December 20th for help in obtaining a premarital agreement before their wedding on December 31. That’s two days from now, as I’m sending this article to Mediate.com on the 29th.

So what happened to our star-eyed lovers, and what did I do? It turns out that Sally has been living with Bill for four years and they decided this fall to get married on December 31. So far, so good. Then Bill introduced the idea of a premarital agreement to protect his houses and his future inheritance, and Sally readily agreed that was fair although she was bringing relatively few assets into the marriage. So far, still okay. But then months went by, with Sally reminding Bill he needed to produce a premarital agreement for her to look at with her own lawyer.

Dumdedumdum. On about December 18 Bill gave her an approximately 20 page “AnteNuptial Agreement” for her to review with her own lawyer and she called me on the suggestion of George, the lawyer for Bill, and asked me to represent her. As I knew George to be a cooperative lawyer, I agreed, though I would have preferred to be their mediator of course. (Sometimes “it’s better to settle for half,” says Alfieri the lawyer at the end of “A View from the Bridge.”).

She asked Bill to forward the agreement to me, which he did on December 19, with a note that his lawyer was still working on it. Alas, the draft was pretty bad. The details are irrelevant here, though what bothered me the most was the absence of language allowing them to own any property jointly. If they ever got divorced, there were token payments from his property and little alimony, etc.

I called Sally and asked her what she thought about this agreement. She was quite hurt at its shabby treatment of their pending marriage and angry that Bill had procrastinated for months before getting the agreement to her about two weeks before the wedding. After two days of back and forth by email and telephone with her, it was now about the day before Christmas.

The chances of their completing an enforceable Premarital Agreement, one that they both actually wanted, under these circumstances seemed small. I advised Sally that she could relax, enjoy Christmas Day and the week before their wedding, and then agree to enter into a Marital Agreement containing all the terms on which they both agreed. She liked that idea, told Bill, he agreed and I wrote for her a short Interim Premarital Agreement in which they agreed to enter into a Marital Agreement as soon as possible AFTER the wedding and defined basic concepts they wanted incorporated into that agreement. They signed the Interim Premarital Agreement today. I look forward to a constructive process in early 2010.

For more information about Marital Mediation, see www.mediationtostaymarried.com or www.mediate.com/fiske. These websites explain how marital mediation works and describe the Marital Mediation Training which Laurie Israel and I are offering in March, 2010 for family mediators only. We welcome your comments and suggestions and, especially, tales of your own professional frustrations in trying to deal with “Antenuptial Agreements” presented to you two weeks before the wedding during the Christmas holidays.



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Biography




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.

 

My wife and I took our 3 children, ages 17, 14 and 12, out of school in June, 1978 and we bicycled through Europe and backpacked in Asia for a year, deciding in about April 1979 that when we returned to Boston I would become a divorce mediator. Back home I started  talking to judges, lawyers, therapists, ministers, teachers and anyone who would listen. People thought I was a meditator because no one knew what mediation was, back then. When I said, "I help couples sit and talk and listen to each other and get divorced peacefully," the almost universal response was "That makes so much sense."  Harvard Law School Professor Frank Sander said, "You are riding the crest of a wave, but don't give up your day job."

 

A Massachusetts probate judge, the late Sheila McGovern, recommended I join the law firm of Healy and Lund. Regina Healy and Diane Lund did what she said, and they changed the name of the firm to Healy, Lund and Fiske. They taught me family law and I taught them mediation. Probate Judge Edward M. Ginsburg believed in the process and sent cases to me. My first mediation began with the wife addressing her husband, their two lawyers and me: "We understand we are some sort of experiment!"

 

After two years of mediating divorces I had my first mediation training when John Haynes and Steve Erickson came to Worcester. Then Margaret Shaw joined with the Mass. Bar Association in 1985 to provide more divorce mediation training, and Chris Moore did the same in 1987. Diane Neumann, Phil Woodbury and I founded Divorce Mediation Training Associates in 1988 and we have been training people in divorce mediation ever since. 

 

 

I have probably mediated about 2,000 divorces, separations and contracts to stay married since 1979. In response to requests from families I have expanded my mediation practice to include a broad range of disputes, from siblings trying to decide questions of care of a relative to a father and son reaching a financial agreement. I have volunteered my services as a mediator to my town government: in one case I helped to resolve a dispute between citizens and a town official. The point: mediation is a creative, efficient process for addressing  human conflict. You get a place to talk. You stay in charge of your life.



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Website: www.mediate.com/fiske

Additional articles by John Fiske



Comments



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 John A. ,   Waltham MA    02/05/13 
 What Happened Afterwards? 
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SEQUEL from John. It's now February, 2013 and, to my knowledge, they have not yet entered into a Post Marital Agreement. We had a four way meeting with clients and lawyers about 6 months after the wedding, and several conversations between the lawyers in 2011, then silence. No news is good news. Since I like to sleep well nights, I presume they are happily married and life is just fine. Thanks for tuning in, 3 years later. Happy Marital Mediations to you too.
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