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Marital Agreements Upheld in Massachusetts

by John Fiske
July 2010 John Fiske

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

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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