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Yes, Everything and the Kitchen Sink! - Six Rules for Establishing a Successful Postnuptial Agreement

by Rikk Larsen, Blair Trippe
March 2006
OK, you’re wondering if a postnuptial agreement is a good idea for you and your partner. You have financial problems and you can’t agree on what happens with the kids if a disaster strikes. Or maybe, you think if you just waited a while your problems wouldn’t seem like such serious issues. Perhaps you’re just sick and tired of always being the one who has to clean up the kitchen. You’ve heard of mediation, maybe as a way for divorcing couples to figure out how to separate their lives and/or possessions – but that’s not what you want to do. While your marriage has some real issues you want to make it work. Can mediation help you? Yes it can. Mediation is an appropriate means to resolve any conflict where the parties voluntarily participate in the process and are motivated to reach an agreement. It is a confidential and voluntary process managed by a neutral third party who facilitates a conversation to establish what is important to each person so they can develop an agreement that works for both.

So how do you decide what to include in an agreement, let alone in the discussion about one? Well it’s simple, everything and the kitchen sink. Be honest. What is more important to your relationship on a daily basis: the fact that your partner never does the dishes and he/she can’t stand the fact that you never make the bed or the big financial picture? While clearly you need to come to terms with the major questions, often the little things can be as important as the big things in determining the long-term success or failure of a marriage.

During the course of a long term relationship it is rare that a couple does not hit some rough spots. Sometimes, committed partners can just keep going and the road becomes smooth again without much effort. However, there are other times when the bumps become bigger until they finally seem insurmountable. Although separation and divorce are always there as options, most couples would prefer to avoid these drastic steps but become so dispirited and so stuck in their problems they often can’t see any alternative. Now however there is another way.

“Weary of marriage counseling but loath to divorce, a small but growing number of couples are trying a drastic approach to keep relationships intact, say lawyers, mediators, and therapists. They draft a contract known as a postnuptial agreement, which is similar to a prenuptial contract, except that it is negotiated after the wedding vows.”
Patricia Wen, Boston Globe Staff
Date: December 19, 2005

The purpose of a postnuptial agreement is first – to identify those things that are making the relationship difficult and, second – to be sure both parties understand what they are, why they are problematic, and what specifically can be done about each discrete issue. The beauty of this kind of mediated agreement is that it allows you to include those things that have become important to you now that the honeymoon is long over. Mediation provides a safe forum to explore imaginative ways to deal with the issues with a view to developing alternative ways to approach them. These options can be very simple solutions such as: you each agree to take out the trash on alternate days. Or, if the issue demands it, the solutions can be much more complicated, like a formula to determine how much money each partner contributes to the kids’ educational funds.

A postnuptial agreement can give couples the tools and assurances they need. The following are six rules for establishing a successful “postnup”:

1) Be realistic - perfection isn’t the goal.

While we say “everything and the kitchen sink” that doesn’t mean literally everything. Prioritize the twenty things you want to change and plan to deal with, say, the first ten. If the agreement starts to feel like a book it won’t be opened.

2) Be fair & reasonable – Remember, it takes two to make the marriage work.

A good postnup isn’t a “gotcha” document. It tries to help each partner play to their strengths. A slob shouldn’t be expected to color code the sweater drawer. A “math-phobe” shouldn’t be in charge of the check book.

3) Keep it Balanced – recognize that both of you must make some changes.

It’s not all his or her fault. You and your partner should expect to both make some changes.

4) Be honest – don’t keep secrets or a hidden agenda.

Full disclosure is critical, both as to what you have and what you want. Here is where the mediator will be especially important – helping each party explain what is really important to them about an issue and why they want the changes (i.e., the core interests behind the surface positions). Many times one party has been afraid to voice his or her concerns or complaints and the other is unaware. Mediation provides a safe place to have the discussion; the mediator helps ensure both parties are heard by the other, and helps them to develop their own workable solutions.

5) Be Flexible: allow for regular modification and a process to do it.

Life changes. You change. Your outlook changes. Allow for an organic agreement that is expected to be modified over time with or without the mediator.

6) Remember it’s your agreement – keep it independent of a 3rd party’s behavior.

Don’t have a key part of the agreement conditional on changes in behavior of your live-in mother-in-law.

Success can be spectacular. Couples often find a huge weight is lifted when they have a chance to articulate what issues are important to them. John Fiske, a pioneer in the field of postnups says, “I am always stunned at how effective a good postnuptial agreement can be. Of course, this isn’t true all the time but I’ve seen couples who I thought were truly lost, who had tried everything from therapy to separation and they end up like newlyweds after the postnuptial process.”

Marital mediation is not therapy. Instead it is a process where the individuals involved look at where they are in their relationship and where they want it to go. They create the vision, they develop the solutions, and essentially, they make the bed that they lie in.

Biography



Rikk Larsen is a founding partner of Elder Decisions where he is a mediator, trainer and conflict coach. He has created and presented conflict skills trainings to eldercare professionals from around New England. Rikk served on a Subcommittee for the Massachusetts Trial Courts Standing Committee on Dispute Resolution. He co-presented Using Mediation in Elder Law at the Massachusetts Chapter of the National Academy of Elder Law Attorneys and presented a workshop When Families Struggle with Dementia: Facilitating Solutions through Mediation at the Dartmouth Alzheimers Conference. He is the co-author, with Crystal Thorpe, of "Elder Mediation: Optimizing Major Family Transitions" for Marquette Elder's Advisor Law Journal. Rikk is a former case coordinator for Family and Probate Court and a case liaison for Small Claims Court for the Harvard Mediation Program. He attended Harvard Law Schools Program on Negotiation, studied elder issues with The Center for Social Gerontology and the concept of introducing meditation and spirituality into the mediation process at the Harvard Negotiation Programs Insight Initiative. He is a member of the New England Chapter of the Association for Conflict Resolution and the Massachusetts Council on Family Mediation. He received his BA from Williams College and his MBA from Harvard Business School.

Blair Trippe is a mediator, trainer, family business consultant and principal of Agreement Resources, LLC where she mediates workplace and family disputes including eldercare and estates issues. In addition to her mediation work, Blair has developed and presented numerous workshops and training programs in Negotiations, Conflict Resolution Skills, and Peer Mediation for professionals and teens. Blair recently presented at the Harvard Program on Negotiation at Harvard law School, to the National Academy of Elder Law Attorneys (NAELA), served on the faculty of the Dartmouth-Hitchcock Medical Centers conference on Alzheimers disease, and presented at the Map Through The Maze 2006 and 2008 Conferences of the Alzheimers Association. She recently was featured in a SHRM (Society for Human Resources Management) article entitled Conflict Management Contributes to Communication. Blair also was interviewed by CBS Evening News with Katie Couric and appeared on a segment on elder mediation which aired nationwide in February, 2007.She earned an MBA in marketing and finance from the Kellogg School of Management at Northwestern University and a BA in psychology from Connecticut College.

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