What better way is there for a mediator to help a couple who really do not want to divorce than a process that can take the spectre of contested divorce proceedings out of play, and thus, out of the way of the spouses’ efforts to stay together? The Massachusetts Supreme Judicial Court (“S.J.C.”) has finally recognized that “marital agreements” i are not invalid per se, but rather, they are permissible, and fully enforceable if created in a way that it will survive “careful scrutiny”, as prescribed by the Court ii . As always, though, opportunities come with challenges; and clients, lawyers and mediating professionals alike need learn important lessons from Ansin v. Craven-Ansin. iii
The mere existence of Ansin makes it clear that matrimonial agreements where the spouses wish to remain married no longer bear the stigma of potentially encouraging divorce, as the S.J.C. once considered possible with prenuptial agreements iv , nor are they “necessarily coercive”. To assure that a martial agreement is truly voluntary and knowing, however, the Court has provided clarifying standards, particularly focused on process and fairness.
First, the S.J.C. has clarified the “full and fair [financial] disclosure” that must precede the execution of every martial agreement, as compared with the rules that apply in the prenuptial context. Disclosure must be comprehensive, including all individual and joint assets and liabilities, current and reasonably anticipated income and reasonably anticipated changes thereto. v The court emphasized the importance of effective disclosure in light of the obligation of “absolute fidelity” that spouses owe to each other when they intend to remain married. vi
Further, the S.J.C. cautioned that the ultimate test of substantive “fairness and reasonableness” of a marital agreement’s terms must exceed the relatively light prenuptial standard of being “not unconscionable” vii . Instead, the Court followed the precedent of Dominick v. Dominick viii , which requires a careful review of the circumstances attending the creation of the agreement, and which may include a full consideration of the statutory factors of the Massachusetts property allocation and alimony scheme ix . The Court also shifted the historic burden regarding fraud to the proponent of the agreement, who must now disprove an allegation that he or she committed fraud in inducing the other spouse to agree.
To implement the teachings of Ansin, in the marital mediation context, it seems clear that all participants should:
1) Encourage the use of independent, competent and experienced counsel for both spouses x , whether as part of mediation sessions themselves, or at least in an ongoing, active relationships during the mediation;
2) Require the parties to make sworn and verifiable disclosure of assets, liabilities and income (together with anticipated changes) before negotiating substantive terms xi ;
3) Consider both the spouses current marital challenges, including financial issues that are a part of their marital difficulties, and the legal parameters of property and spousal support matters in the divorce context;
4) Caution the spouses to be deliberate in their process, both to reduce the likelihood of subsequent regrets and to enhance the likelihood that assent is provided knowingly and voluntarily.
Ansin presents an opportunity for spouses and mediators to act responsibly and sensibly in the effort to save marriages, and otherwise to curb the ravages of divorce litigation. However, to do so without observing its cautionary aspects, and those of other cases can disserve the public that is our market, and roil, rather than calm, the waters at the time of divorce if that event must come. A process that results in avoiding a contested divorce is no less good a professional service than a saved marriage, though clearly the less desired outcome. At the same time, a sloppy process that leads to a poorly conceived agreement invites a painful form of double jeopardy for divorcing spouses: a litigated challenge to the agreement and a statutory battle over finance, if successful. Every mediator, lawyer and client ought to read and re-read Ansin; then read it again. The four cautions above will help to crystallize how mediators may help, and not hurt, but there is no full substitute for the S.J.C’s entire body of thinking on the subject.
i Previously known to lawyers and mediators as “postnuptial agreements”.
ii Litigation hurdles substantially higher than for premarital agreements (also re-named by the S.J.C., and formerly know to us all as “antenuptial” or “prenuptial” agreements).
iii Mass. (2010).
iv See, Osborne v. Osborne, 394 Mass. 591 (1981).
v Cases addressing prenuptial agreements do not specify the place of income in financial disclosure, though Supplemental Probate Court Rule 401 mandates it in the context of divorce agreements, known in Massachusetts practice as “separation” agreements. See, Rosenberg v. Lipnick, Mass. (19 ); Osborne v. Osborne, supra; and DeMatteo v. DeMatteo, 436 Mass. 18 (2002).
vi At the same time, the Court noted that “approximate” values of assets would suffice. Mass., at .
vii See, DeMatteo, supra.
viii 18 Mass. App. Ct. 92 (1984).
ix G.L., chapter 208, section 34.
x Independent counsel is not a requirement for any of the various matrimonial agreements in Massachusetts, but the presence of same is emphasized repeatedly in many of the cases cited above as bearing on the level to which consent has been obtained freely and voluntarily form the party resisting enforcement at the divorce stage. Ansin amplifies this wisdom.
xi The use of Rule 401 Financial Statements, at least their pertinent portions, is an excellent way to accomplish this in whole or in part.
Learn more about postnuptial agreements.