There is a veil of silence that surrounds every married couple. Spouses express loyalty by not complaining about their partner or their marriage. People feel ashamed if other people know there are problems in their marriage. People often feel that they are the only ones with an imperfect marriage.
Learn to Make Your Marriage Work
People use books and take classes to learn everything – how to kayak, how to use a computer program, how to paint with oils – the list is endless. A marriage is one of the most important aspects of one’s life. And yet when a marriage is suffering and needs to be fixed, people do not tend to seek the knowledge and education that would help put the marriage back on the right track.
Marriage is a complex and difficult institution. Fortunately, many married couples actively address problems in their marriage by seeking individual psychological therapy and/or marital counseling at different times during their married lives. This is a very good thing. Getting assistance outside their marriage can help couples get through tough times, and also provide tools for communication and change. For couples who have made the decision to terminate their marriage, outside resources can also assist in a fair and effective divorce, leading to a peaceful and productive “aftermarriage.”
There is no substitute for the training, skill, and experience of mental health professionals. They have a particular skill set that can be invaluable in assisting people in sorting out personal and relationship problems, and often can provide help in a foundering marriage. The best marriage book I know is a slim, out-of-print book by George Pransky, PhD., entitled The Relationship Handbook. It is clear, succinct, and can be the basis of mutual study by a married couple. You can find used copies of this book on the Internet (also in an earlier printing under the name Divorce is Not the Answer).
How a Lawyer Can Help
There is also a certain realm of marital problems that can be most effectively addressed by a lawyer. These mainly deal with financial concerns and the stress and conflict relating to the legal rights and responsibilities of the married couple. These “legal” problems often spill into and contaminate the goodwill and love between spouses. Lawyers are generally trained and experienced in financial matters. Divorce lawyers and estate planning/probate lawyers, in particular, generally have a deep understanding of personal finances.
Marriage is both a financial and personal partnership. Divorce entails the dismantling of both. Divorce lawyers gain business and financial expertise during law school and afterward during their practice of divorce law. The rules on divorce are quite clear, and therefore a divorce lawyer can generally give a client a good “read” on the probable financial terms of his or her divorce.
Estate planning lawyers and probate lawyers, too, are experts in financial matters. Estate planning lawyers have a deep knowledge of all the investments and assets a person or couple can have, from the family home to interests in limited liability companies and intellectual property rights. These lawyers are conversant in the rules of inheritance and marital rights upon death.
Use All Resources Available
A problem is that people in troubled or difficult marriages either consult with no one (until it is too late), or they may consult with mental health professionals first. But if that process fails, the couples will assume that their marriage is not viable, and each will consult with an attorney with the aim of divorce. Unfortunately, many attorneys will not realize that this divorce might be reversible, and will begin “execution mode” with the legal and fact-finding work that makes the divorce move forward. A good divorce attorney should really take that first step of probing with the client whether the divorce is inevitable, or whether continued work can be done by the married couple to revitalize their marriage. This is where “marital mediation” or “mediation to stay married” can come into play.
A Double-Edged Sword
The potential harm inherent in prenuptial (and postnuptial) agreements is borne out by human experience. Negotiating and putting into effect a prenuptial agreement on the eve of a marriage is a very difficult and sensitive undertaking. There are often hurt feelings and tears shed. At the heart of it, a party is taking away something from his or her spouse. It is rarely a level playing field, and the negotiations can sometimes be so damaging to the relationship that it makes a divorce much more likely to take place. That’s certainly not the result anyone wants.
I liken a prenuptial agreement to a double-edged sword – if not done in appropriate cases, it can harm the marriage. But if done unskillfully or roughly, it can also harm the relationship. Sensitive legal practitioners are careful to make a prenuptial agreement as least restrictive as possible. Many of us build “sunset” provisions into the agreement so that the restrictions (or some of them) disappear over time or after there are children from the marriage. Some of us carve out areas of “marital enterprise” in the agreements where typical prenuptial agreement restrictions in divorce rights do not apply, and the normal factors, instead -- length of marriage, relative financial resources, potential for inheritance --will be applicable in case of divorce. I will only work on a prenuptial agreement for a client in a case in which I think it would help rather than hurt a marriage.
The Problems with Prenuptial Agreements
Prenuptial agreements are inappropriate in most cases. They are difficult to enter into and require separate legal counsel for each party. As a result, most people do not enter into prenuptial agreements prior to a marriage. But what if there is no prenuptial agreement (as is usually the case) and a couple encounters a significant dispute relating to financial conflicts after their marriage?
For instance, the marriage is struggling, and one party is about to come into an inheritance. The spouse who will receive the inheritance may want to settle his or her rights regarding the inheritance. Or, one party is an entrepreneurial risk-taker who needs marital funds for a business venture, and the other spouse wants to live conservatively because they are both close to retirement age. Or, one party has significantly more assets than the other, it is a recent marriage, the ultimate success of the marriage is in question, and the moneyed spouse would like to proceed with the marriage without having a longer-term marriage held against him or her in property division if the marriage ultimately fails.
Often the problem arises when each of the spouses has children from a first marriage, and a prenuptial agreement was not done at the time of the present marriage. The spouses now realize that they want to make sure their own children have at least some of their premarital and marital assets when they die, while still perhaps wanting to share some of their assets with their second spouse.
Can something be done to accommodate the styles and wishes of each of the parties? Is there a way to allay their fears and conflicts to allow the marriage to proceed without divorce? If nothing is done, these conflicts can have a detrimental effect on an otherwise sound marriage and can lead to divorce.
Postnuptial Agreements
In the past, postnuptial agreements were not considered legally enforceable. However, courts in many jurisdictions around the United States are now beginning to enforce them. In dicta in Fogg v. Fogg, 409 Mass. 531 (1991), the Massachusetts Supreme Judicial Court left the door open to the validity of postnuptial agreements. Reading between the lines of the Fogg case, a postnuptial agreement would need to meet the same requirements as a prenuptial agreement. It must be free from fraud, bad faith, and coercion, fair at the time of the contract, and fair at the time it goes into effect. It must not strip a spouse of essentially all of his or her marital rights, and each spouse must be represented and fully advised by separate attorneys prior to signing it.
Very few attorneys in Massachusetts are writing postnuptial agreements. Of those who do, I have seen agreements that range between the standard “Separation Agreement” with the title replaced with “Postnuptial Agreement” and the standard “Prenuptial Agreement,” again with the title changed to “Postnuptial Agreement.” My sense is that drafting a postnuptial agreement is very sensitive – even more so than a prenuptial agreement (which is in itself a very difficult, sensitive process). Often, postnuptial legal negotiations between spouses may result in non-written understandings or changes of title of assets. Though not legally binding, these non-written understandings may be personally binding, and may relieve conflict and permit the marriage to move forward. And that is what’s important.
Issues that might be worked out in postnuptial mediation include transferring title to real property to one spouse and agreements to make testamentary transfers for the benefit of children from a previous marriage. Limitations on spending or borrowing can be set. Financial accounts and assets can be separated. Talking about these issues with a lawyer-mediator – even without entering into a formal, written agreement – can be extremely helpful.
The rules of divorce can be explained so that the concerned spouses understand what to expect if a divorce occurs. This knowledge, in itself, may be enough to permit the marriage to proceed. Knowing your rights in divorce can be very empowering to an ongoing marriage, because it can help provide relief from stress and uncertainty. These rules are complex. You can get a sense of what’s taken into account by reading the many factors listed in Massachusetts General Laws, chapter 208, section 34, posted at www.mass.gov/legis/laws/mgl.
“Mediation to Stay Married”
The best place for a married couple to start working through the legal understanding and decisions they need to make to potentially sustain and continue their marriage is to find a lawyer/mediator trained in divorce law. A good place to find one is at the websites for the Massachusetts Council for Family Mediation (www.mcfm.org) and the Massachusetts Collaborative Law Council (www.massclc.org). A couple seeing a marital counselor or in personal therapy should also continue with these efforts. And it is very helpful to continue to read books about marriages (together) while you are working on your marriage. Use whatever tools are available.
“Mediation to stay married” offers couples a safe place to work their way through sustaining (or dissolving) their marriage. It’s voluntary, neutral, and non-adversarial, and is led by an attorney/mediator who will help define areas of conflict for mutual solutions. In a non-threatening and comfortable setting, the mediator will set the stage for frank discussions. If the mediator is an attorney, the parties will have the benefit of legal insights into their problems. If the negotiations result in a written agreement, it should be done with the same formalities described above for a prenuptial agreement, including having separate counsel advise each party prior to signing.
Mediation tends to achieve results quickly with immediate, concrete solutions. Aside from dealing with financial issues, it can address the sharing of household and parental responsibilities. Once agreements are reached on the big items (e.g., what assets a spouse may use in funding his or her new business venture), the other personal issues and marital conflicts are often quickly resolved. Communication stalemates and misunderstandings can be worked out. Unproductive patterns of behavior can be identified by the neutral. Aside from being legal technicians, attorney-mediators have a great deal of people knowledge from their practice of law, which can be a powerful force in the mediation context.
As a result, employing postnuptial mediation (also known as “marital mediation” and “mediation to stay married”) in instances where irrevocable steps toward divorce have not been taken can be very effective for a married couple in trouble. Working with an attorney/mediator may be a very useful step for a married couple and may let a marriage live to see a new day.
