Helping save a marriage through Mediation to Stay Married

This is an edited excerpt by Vicki Shemin in the MCFM quarterly. It is the true story of a couple that considered divorce, but decided to stay together after drafting a postmarital agreement regarding the parenting of their young son.

Jill and Don wanted to explore alternative dispute divorce options as they believed that their 7- year marriage was irretrievably broken. Arriving at this painful decision was all the more poignant for this young couple since they had a one-year old son.

The manner of a couple’s interpersonal physical proximity speaks volumes about their psychological state of mind. Not only did Jill and Don elect to sit on the same side of the conference room table, they sat so close to one another that their elbows were practically touching. They spoke in hushed and mutually respectful tones and gave the other partner ample time to articulate his and her feelings. Instead of looking at me, they most often spoke directly to one another. As to their communication, the theme most central to both their parallel and collective conversations was their deep love for their son, Alex.

I sensed a distinctive sea change in the couple: perhaps overwhelmed by what actually getting divorced entails, perhaps striking at the heart of any ambivalence they may have felt coming into the process, by the end of the meeting, Jill and Don looked one another squarely in the eye and contemporaneously asked each other – “Is this what we really want to be doing?”

Jill and Don left our office that day very different individuals from the two who had walked in just an hour and a half before. They wanted me to draft a document which would lay out the details of their co-parenting plan for their son if and when the marriage did end in separation or divorce one day. If divorce became a reality; if that day ever came, they did not want to be making decisions concerning Alex borne of spite, anger or vengeance.

Over the months, Jill and Don worked hard on hammering out the details of a Custody and Parenting Agreement which addressed matters such as legal custody and a very detailed coparenting schedule (including summer and holiday schedules), as well as a provision anticipating the use of a Parenting Coordinator as a mediator/arbitrator to facilitate the couple with parenting decisions.

In mid-March, I heard from Jill. The email said: “Don and I are in a good place in our relationship right now, and I feel we will be in an even stronger now that this Parenting Agreement is behind us. We sincerely thank you in advance for your patience and understanding and for showing us there was another way to move forward in our lives.”

In a period of six months, this family had beaten the odds and stayed together.

View the full document here.

Bio of Vicki Shemin.

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Saving marriages before they start

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Divorce rates dropped in 2009

According to some new data from the CDC, divorce rates have dropped over the past 3 years. It’s hard to tell whether this is a long-term trend since the statistics exclude some states. However, a very interesting trend to watch.

Here is the chart:

CDC Source Document

This data does not include all states, it’s missing California, Georgia, Hawaii, Indiana, Louisiana, and Minnesota.

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US divorce rate statistics

There are so many inconsistent numbers on the US divorce rate that it’s difficult to get your hands on good numbers. Most often you hear 50%, but that’s an over-simplistic estimate that seems to have little basis in hard numbers.

That makes a 2009 study from the U.S. Census Bureau all the more significant. The study was on 2009 America’s Families and Living Arrangements.

Here are a couple of summary charts we put together:

Source: US Census.

Using the same source, the PAIRS Foundation has done a deeper look at divorce rates at different income levels:

The 2009 America’s Families and Living Arrangements study reveals the percentage of women earning over $100k who are divorced climbs from 11.85% between 45-49 to 22.45% from 50-54. For men in the same income category, the percentage who are divorced drops from 8.4% between the ages of 45-49 to 6.61% for those who are 50-54.

For men between 45-54, as income increases, the percentage who are divorced declines. For high-earning women between 50-54, the percentage that are divorced grows as paychecks increase.

We’ll look at this further in future posts.

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Psychology of happiness in marriage

Daniel Gilbert is a famous psychology professor and researcher known for his studies on happiness. Columnist Patrick O’Brien cites Gilbert’s principles on happiness while making some interesting claims about the increase in divorce rates in OurDaily.

Concurrent with the adoption of easy divorce has been a relaxation in social attitudes about marriage and family. Compared with mid 20th century Americans, for whom having a marriage and family was a social expectation, we are more likely to view it as one lifestyle choice among many.

As claimed by the boosters of less restrictive marriages, we should see that the smaller share of people who are married today chose it more freely than their grandparents and are more free to leave should they become unhappy in their marriage, and thus they should be happier than previous generations forced to stick it out in unhappy marriages.

However, the share of married women who reported to be very happy declined from 67 percent in 1973 to 60 percent in 1990, and has flatlined as divorce rates have tapered off. Paradoxically, in a culture in which it is more normal to choose not to be married or to get out of an unhappy marriage, fewer people rate their marriages as happy.

This parallels with recent discoveries in the psychology of happiness, which show people grow accustomed to situations they are committed to but continually second-guess decisions they are given the option to change, leading to decreased satisfaction with those decisions (see Dan Gilbert’s talk at the 2004 TED conference).

The ideal of traditional marriage, while not always followed, was characterized by, among other things, lifelong commitment, and was only broken in cases of abuse, infidelity, or abandonment.

And in most cases, it worked. More children grew up with two parents and a greater proportion of people reported being happily married.

Now, however, marriage is not one final choice but reconsidered and second-guessed as circumstances dictate. This change was not caused entirely by no-fault divorce laws, since divorce rates began trending upward in the 1960’s.

However, it is rather telling that it is easier to get out of marriage, once viewed as the foundation of society, than a business contract. Not only is this a formula for increased dissatisfaction even among those in the 60 percent of marriages that have not ended in divorce, it constitutes a fundamental shift in the definition of marriage.

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The 3 most common mistakes that couples make

Dr. Bonnie Jacobson is the author of the book Choose to be Happily Married. She talks about the three common mistakes that couples make, among other topics, in a recent interview in The Bulletin.

The three most common mistakes couples make:

1) Blaming the other instead of taking personal responsibility. When you blame someone else, you give up your personal power and make your happiness dependent on another person’s behavior rather than looking at what you are doing to make yourself miserable

2) Knowing the difference between being responsive and being reactive. As an example, he leaves the dishes in the sink 50 times and you scream at him 50 times and you haven’t understood why he did it. Another turning point that is being represented in this example is knowing the difference between control and influence as well as control and controlling. Influencing might be to move the dishes to the dishwasher with the hope that eventually he will get the idea. Controlling would be to feel anxious over the sink full of dishes and to yell at the other to clean up, again and again. Taking control in this case may be to sit down and discuss what his idea is related to cleanliness and the kitchen and then to come to some consensus over what he agrees to and what you agree to in terms of household tasks.

3) What leads to divorce is not knowing the difference between surrendering and submitting. What we mean by surrender comes from the tango. It means choosing to give yourself over to a love relationship just as in the dance when two people move together (called surrendering) to the steps of the tango and to the music. People confuse this with submitting, which is master-slave. In submitting we are no longer owning our own fate. This causes us to feel depressed and defeated and we imagine the only way to get our lives back is to leave the one we are with.

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Making decisions about divorce

Most people would probably agree that many couples are too quick to divorce. Have they examined their marriage and determined that it’s not worth keeping, or are they simply taking the easy way out? It’s not an easy decision, and there are no right answers.

As Jeffrey Cottrill puts it:

If you’re considering divorce, remember that this decision will deeply change the lives of your spouse, your children, your parents, and maybe extended family and friends as well as your own. Divorce is not something to be decided hastily. It’s a choice to end the most important relationship in your life — a relationship that, once upon a time, may have been wonderful. You may feel sure there’s no bringing back the marital satisfaction you once enjoyed (or expected). But is divorce going to solve your current problems — or just create more?

Remember that even great marriages require work. All romantic relationships are, to some degree, an exercise in compromise: there’s always some level of adjustment toward each other’s conflicting tastes, schedules, moods, quirks, and expectations, because there’s no such thing as a couple whose personalities are completely in sync with each other. But when this work pays off, a healthy marriage can be a source of incredible happiness, comfort, and security. Should you throw away such a potentially good thing? Ask yourself if it’s worth making the effort to see if your marriage can be saved before you file for divorce.

“Couples need a roadmap of what goes on in a normal marriage,” explains Diane Sollee, the founder and director of Smartmarriages.com. “They’re always comparing themselves to “how happy I should be.’ But it has nothing to do with whether you find Mr. or Ms. Right. It has little to do with ‘compatibility’, because even incompatible couples have made it. The courtship process is about looking for compatibility, but after you’re married, things change and you’ll find lots of incompatibilities between you. Whether you understand that this is normal will predict how well you do.”

Here are some guidelines that Cottrill recommends:

Try to save your marriage if:

  • At least one of you is willing to seek help in some way: marriage counseling, relationship workshops, books on how to re-ignite passion
  • You both recognize that disagreements are a normal part of any marriage
  • You’re open to learning how to communicate openly and honestly — without accusing or blaming each other, or “hitting below the belt”
  • You’re willing to accept responsibility and apologize for the damage you’ve done to your spouse and to your marriage
  • You’re willing and able to devote time and effort to improving your relationship
  • You both believe the marriage is worth trying to save.

Divorce might be your best choice if:

  • There’s a pattern of abuse, drug addiction, or repeated infidelity
  • Neither of you is willing to change or adapt to present circumstances
  • Neither of you is able to forgive past wrongs or make amends
  • You’re committed to seeing yourself as 100% innocent and your spouse as 100% guilty regarding the problems in your relationship
  • One of you has declared a new sexual orientation
  • You believe the marriage isn’t worth trying to save
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Marriage and sleeping arrangements

A report from the Sleep Foundation raises the question: What is a normal amount of time to spend with your spouse?

Researchers say married couples are spending less and less time together. The National Sleep Foundation reports in 2005, one in four married couples slept in separate bedrooms. Many partners no long eat together, and now many couples aren’t even sleeping together.  Experts say that’s a big problem.

Psychologist Dr. Steward Beasley says it can be a very serious problem for couples when they choose not to sleep together. Beasley provides marriage counseling and says sleeping separately can lead to divorce.

“You go to sleep where you are sharing,” he says. “It is an important part of a marriage.”

Beasley says sex is important, too. And it’s difficult to do in a marriage that puts a priority on a good night’s rest, instead of the relationship.

“Sex is, of course, sex,” he explains. “But it is also an important means of communication between couples. And the old idea of love-making truly is communicating how much you love someone.”

From the FoxTwinCities.

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Essay on whether to divorce or stay married

There’s a thoughtful essay by William Wright in the Cleveland Daily Banner. Not everyone would agree with the insistence on marriage over divorce, perhaps influenced by religious views, but it’s hard to argue with the impact on many relationships of our modern consumer culture:

“We live in a world where everything is disposable — diapers, razors, cameras, dishes, spoons, cups — even marriages. If something is not working properly it’s easier to get rid of it and get a new one than to try fixing it. How convenient. But how tragic for families!”

As Margaret Atwood once said, “A divorce is like an amputation; you survive, but there is less of you.” Wright continues on this theme:

“Most people I know who divorced agree on these things: They regret getting divorced, wish they had tried harder and never fully got over the death of their marriage. Why do you suppose that is true for so many people?

Could it be couples often realize too late that divorce simply exchanges one set of problems for another? Everything from living arrangements to financial and social status changes, and rarely for the better. Even with a new mate they discover a whole new set of problems since no one is as wonderful as they seem when making a first impression.

According to divorce statistics, second and third marriages are more likely to end in divorce than first marriages. The theory is that people who haven’t succeeded the first time are more likely to repeat the same mistakes the second or third time around. Could it be couples in trouble need to slow down and evaluate their roles in the possible demise of their marriage and ask what can they do to change things?”

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Personal relationship advice from a business professor

Marriages and businesses can have a lot in common, according to Rosabeth Moss Kanter, business professor at Harvard Business School. She usually advices about corporate relationships, but she recently posted some tips about how to make marriages work.

Unlike full-blown mergers, in which two really do become one because one company disappears, alliances and partnerships resemble modern marriages: separate careers, individual checkbooks, sometimes different names, but the need to work out the operational overlap around household and offspring….

Be prepared to change yourself. Partners must be willing to be influenced by one another. To make linkages possible requires operating compatibilities, project by project and sometimes even in a larger sense. This can mean learning the other’s language and style or inventing a new one; changing to the other’s system or creating a joint one.

Help everyone win. Mutuality is the hallmark of organizational collaboration. Balancing benefits so that each partner gets something of equivalent value can be hard to do in the short run, but it is essential in the long run. The best alliances try to maximize the value of the whole relationship, which then makes it more valuable to each partner.

Get closer, change course, or exit gracefully. Like living systems, relationships evolve. Change should be expected. But the best guarantee that organizations will be closer in the future is success in what they try to achieve today. Success strengthens relationships.

After all, human relationships have much in common regardless of whether they are between business partners or marriage partners. We struggle with many of the same emotional responses, we strive to have the right balance of fairness and differentiation of roles, and good communication is always critical.

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When infidelity happens to a marriage

When infidelity occurs in a marriage, it’s usually time for some tough decisions. If both partners want to save the marriage, the process of rebuilding the relationship can often be helped through marital mediation or marriage counseling.

Here’s what Arlene Foreman, renowned couples counselor, had to say about relationships coping with infidelity, as quoted in the Marriage Counseling Blog.

Couples can recover from infidelity if they are willing to work on their relationship, despite the anger and hurt that they feel now. First, they need to recognize that they have unresolved issues, as well as the infidelity itself. With help, they can move past the pain and the blame and start working on the issues that led up to the infidelity.

She further states:

Infidelity may be an indicator of larger problems in the relationship that need to be addressed. Couples can recover from infidelity if they are willing to work on their relationship. With professional help, they can often move past the pain, acquire valuable new skills, and begin again

The average couple waits seven years from the time their marriage begins to unravel until they seek counseling. What finally drives them to take that step is frustration and pain. The #1 cause of divorce in this country is that couples slowly, insidiously drift apart. Marriage almost always begins with love, excitement, and an intention to grow old together. But the sweetest dreams can float away in a sea of hurts, disappointments and unresolved conflicts.

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New book on history of marriage

In this insightful history, marriage counseling is shown to be a modern innovation in a world in which marital perfection has become an American ideal.

In an interview with Rebecca Davis, the author of More Perfect Unions: The American Search for Marital Bliss, she states:

“I guess you could say that I’m less ‘frustrated’ about marriage’s resilience [than the interviewer]. In fact, I would argue that marriage’s very resilience suggests that it has no inherent value; it is a socially constructed social and legal relationship that acquires meanings from the institutions that govern it, the people who participate in it, and the social and cultural actors that represent it.”

Of course, just because something is socially constructed doesn’t mean it lacks value. If you want the full answers, we advise you read the book.

Some reviews of the book:

In this original and beautifully- written history of marriage counseling, Rebecca Davis demonstrates that the American obsession with marriage says as much about the quest for the perfect nation as it does about the desire for marital bliss. More Perfect Unions is essential reading for anyone interested in changing ideas of marriage, intimacy, gender, race, sexuality, and American identity itself.
–Elaine Tyler May, author of Homeward Bound: American Families in the Cold War Era (20100306)

Marital conflict is centuries old, but as Davis shows in this eye-opening history, marriage counseling is a twentieth-century innovation. Her deft and lively analysis explains how an ideal of marital perfection has made Americans the most marrying kind in the Western world today.
–Nancy F. Cott, Harvard University (20100329)

Judicious, deeply researched, and rich with insight and fascinating detail, this book describes the debates surrounding marriage since the 1920s: the impact of divorce on children, the relationship between single parenthood and poverty, gender inequities in spousal roles, and the still unresolved tension between marriage and personal fulfillment.
–Steven Mintz, author of Huck’s Raft: A History of American Childhood (20100330)

Davis details the convoluted origins, contradictory beliefs, and unanticipated consequences of America’s marriage counseling and marriage promotion movements, both secular and religious, over the past 100 years. This excellent resource deals sensitively with the gender, racial, and sexual biases of its sources.
–Stephanie Coontz, author, Marriage, a History: How Love Conquered Marriage (20100711)

This fluent study traces Americans’ changing attitudes towards marriage throughout the 20th century, with a particular emphasis on the period between the initial rise of marriage counseling in the 1930s and the emergence of the second wave of feminism in the 1960s and ’70s. Davis considers myriad issues and influences, including shifting approaches to homosexuality, the role played by different religious institutions, and the impact of race on the public discourse on marriage. Davis illustrates her dense social history with illuminating case studies of such pivotal figures as the eugenicist Paul Popenoe, a pioneer in the field of marriage counseling, and Florence Hollis, a lesbian teacher and researcher who applied psychoanalytic theory to marriage counseling. These fascinating examples reveal the competing intellectual and social forces that had a stake in defining and influencing American marriage. The author balances this nuanced and admirably thorough history with unwavering emphasis on the impact of evolving gender roles on the institution. (Publishers Weekly )

An interesting social history.
–Laura Vanderkam (Wall Street Journal )

An astute, engaging, and disturbing history.
–Jill Lepore (New Yorker )

More Perfect Unions is…a useful, and usefully provocative, book. It should find a durable life in the discourse of marriage and gender studies.
–Jim Cullen (History News Network )

Davis presents marriage counseling as an institution with larger aims than connubial bliss, but also as a tool of the state, clergy and social scientists to help strengthen families, communities and economies.
–Lisa Bonos (Washington Post )

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Ansin v. Craven-Ansin: Good News and Practical Suggestions for Marital Mediation

william levineWilliam Levine

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.

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Joanna Grossman on Ansin v. Craven-Ansin

Here is another summary on the Ansin case, from law professor Joanna Grossman.

Here are the facts of the case the SJC recently resolved: Kenneth Ansin and Cheryl Craven-Ansin married in 1985. At the time, like ninety-five percent of couples entering into a first marriage, they did not enter into a prenuptial agreement, nor did they make any other attempt to privately determine the financial consequences that would ensue, should they divorce. Nineteen years and two children later, however, they entered into a written agreement “settling all the rights and obligations arising from their marital relationship” in the event of divorce.
This was not a so-called “separation agreement.” A separation agreement is executed when a couple splits up and intends to divorce. (Such agreements are very common, are generally enforceable, and control the economic consequences of many, if not most divorces today.) To the contrary, both Kenneth and Cheryl testified that they signed this agreement in 2004 with the hope that their marriage would continue. This postnuptial, or marital, agreement was supposed to make their marriage stronger. At least, that’s what the husband claimed at they time they signed it.

When the agreement was executed, the couple had been having marital problems since the prior year. They had gone to marriage counseling. But early in 2004, Kenneth told Cheryl that he felt uncertain about her commitment to the relationship, and that he “needed” her to sign a marital agreement if the marriage was to survive. She says that his request for an agreement caused her tremendous stress and made her “physically ill.” Some time after his request was made, they separated for six weeks. They then reconciled, once she agreed to enter into the postnuptial agreement.

Under the terms of the agreement, in the event of divorce, Cheryl was to receive a lump sum payment of $5 million, plus 30% of any increase in their marital property from the time of agreement until the time of divorce. Kenneth also agreed to allow her to stay in the marital home for one year following any divorce, at his expense, and to pay her medical-insurance premiums until she died or remarried. The parties essentially waived any other claim to money or property arising out of their marriage.…

And, although Cheryl probably did bargain for less than she could have received in divorce court, the SJC also concluded that the substantive terms of the agreement were fair and reasonable. It pointed to the fact that, under the agreement, she received not only a significant fixed payment, but also a share of any appreciation. And if the couple’s assets had gone down in value, it noted, she was protected against any such loss. Given all the relevant factors, the court concluded that the agreement could be specifically enforced against the wife: In other words, she would have to take her $5 million, her health-insurance premiums, and her housing expenses and go.

Joanna Grossman, a FindLaw columnist, is a professor of law and John DeWitt Gregory Research Scholar at Hofstra University.

Learn more about postnuptial agreements.

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Decision on Kenneth S. Ansin vs. Cheryl A. Craven-Ansin

This just in… the slip opinion for Ansin v. Craven-Ansin.

Worcester. April 5, 2010. – July 16, 2010.
Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ.
Husband and Wife, Marital agreement. Contract, Marital agreement. Divorce and Separation, Division of property.
SJC-10548

Complaint for divorce filed in the Worcester Division of the Probate and Family Court Department on November 29, 2006.

The case was heard by Lucille A. DiLeo, J.

The Supreme Judicial Court granted an application for direct appellate review.

Susan E. Stenger (Nancy R. Van Tine & Robin M. Lynch Nardone with her) for the defendant.

David H. Lee (Kevin M. Corr with him) for the plaintiff.

MARSHALL, C.J. We granted direct appellate review in this divorce proceeding to determine whether so-called “postnuptial” or “marital” agreements are contrary to public policy and, if not, whether the marital agreement at issue is enforceable.(1) The dispute is between Kenneth S. Ansin (husband) and Cheryl A. Craven-Ansin (wife) concerning the validity of their 2004 written agreement “settling all rights and obligations arising from their marital relationship” in the event of a divorce. Two years after the agreement was executed, in November, 2006, the husband filed a complaint for divorce, and sought to enforce the terms of the agreement. At the time of the complaint, the parties had been married for twenty-one years and had two sons.

A judge in the Probate and Family Court upheld the agreement, finding that it was negotiated by independent counsel for each party, was not the product of fraud or duress, and was based on full financial disclosures by the husband, and that the terms of the agreement were fair and reasonable at the time of execution and at the time of divorce. Judgment entered enforcing the marital agreement. The wife appealed, and we granted both parties’ applications for direct appellate review.(2) We now affirm.

1. Facts. We recite the facts as found by the judge, all of which are supported by the record.

a. The marital assets. At the time of the execution of the marital agreement in 2004, the value of the combined assets of the husband and wife was approximately $19 million. One of the assets, now at issue, is the husband’s interest in certain trusts and business entities established by his grandfather, currently managed by his uncle. The assets of these various entities are substantial real estate holdings in Florida.(3) The husband’s interest in the Florida real estate is passive; he was not involved in the management of the properties, and did not have or exercise control over the sale or other disposition of the properties. During the course of the marriage, the husband received, and the wife was aware of, distributions from his interest in the Florida real estate. The timing and amount of the distributions was unpredictable, and varied widely, as the wife knew.

During the course of their marriage the couple retained RINET Company LLC (RINET) to provide financial advice to them and to prepare their joint tax returns. The parties’ primary financial planner from RINET met with the couple on a quarterly basis, and RINET prepared “periodic summary reports” to permit the couple to monitor their financial affairs. Because the husband’s interest in the Florida real estate was “fractional” and “non-controlling,” and because “speculation” is “inherent in any attempt to assign any values to such interests,” there was no attempt by RINET to assign concrete values to these assets. Rather, on the reports prepared by RINET, the husband’s interest in the Florida real estate was given a “placeholder” value of $4 million to $5 million (the amount varied from time to time), of which the wife was well aware. The wife understood that the husband’s principal objective in executing a marital agreement was to protect his interest in the Florida real estate in the event of a divorce.

b. The marital agreement. The parties were married in July, 1985. The execution of their marital agreement nineteen years later was precipitated by marital problems that began toward the end of 2003. At the time the couple sought the assistance of a marriage counsellor. In early 2004, the husband informed his wife that he “needed” her to sign an agreement if their marriage was to continue. He testified that his “uncertainty” about the wife’s commitment to their relationship was the reason for this request. It caused the wife a “great deal of stress”; she told her husband that she would not sign any such agreement, and that discussion of the issue made her “physically ill.” The parties separated, as it turned out for some six weeks. While the parties were separated, the husband promised his wife that he would recommit to the marriage if she would sign a marital agreement. She agreed to do so, she said, in an attempt to preserve the marriage and the family. The parties resumed living together, and went on a “second honeymoon.”

In April, 2004, they began negotiating the terms of the agreement, which we describe below. Each retained counsel. The judge’s detailed description of the negotiations depicts back- and-forth discussions between counsel for the wife and counsel for the husband, during which the wife negotiated terms more favorable to her. Several draft agreements were exchanged. The judge found that in the course of the negotiations the wife was “fully informed” of the marital assets, and that she was “satisfied” with the disclosures made by the husband with respect to the Florida real estate, which included the financial summaries prepared by RINET that used the “placeholder” values. Finally, with the assistance of their respective counsel, the parties reached an agreement; it was signed in July, 2004.

We briefly summarize key provisions of the marital agreement. The agreement sets forth the parties’ intent that, in the event of a divorce, the terms of the agreement are to be “valid and enforceable” against them, and “limit the rights” that “otherwise arise by reason of their marriage.”(4) The agreement recites that the parties are aware of the rights to which they may be entitled under Massachusetts law, that each has retained independent legal counsel, and that each executed the agreement “freely and voluntarily.” The agreement states that the parties are “aware of the other’s income,” warrants that each has been provided with “all information requested by the other,” and affirms that each “waives his or her rights to further inquiry, discovery and investigation.” The agreement further recites that each is “fully satisfied” that the agreement “will promote marital harmony” and “will ensure the treatment of Husband’s property to which the parties agreed before their marriage and since their separation.”

As for the distribution of property in the event of a divorce, the agreement states that the wife “disclaims any and all interest she now has or ever may have” in the husband’s interest in the Florida real estate and other marital assets. The husband agreed to pay the wife $5 million, and thirty per cent of the appreciation of all marital property held by the couple from the time of the agreement to the time of the divorce.(5) The agreement provides that the wife could remain in the marital home for one year after any divorce, with the husband paying all reasonable expenses of that household. The husband agreed to pay for the wife’s medical insurance until her death or remarriage, and he agreed to maintain a life insurance policy to the exclusive benefit of the wife in the amount of $2.5 million while the parties remained married.

c. Events following execution of marital agreement. On execution of the marital agreement, the relationship between the husband and wife took on, in the judge’s words, a “light and optimistic tone” and both were “looking forward to strengthening their marriage.” The two engaged in numerous activities together, including training for a marathon and traveling. However, in August, 2004, the parties had a discussion that “led the [w]ife to believe that their marriage was over.” The husband had not decided to divorce his wife, and the judge credited his testimony that he was “unwilling” to abandon the marriage at that time.

In response to their marital difficulties, the parties again considered separating, but decided not to do so at least until their younger son graduated from high school. They remained living together from August, 2004, until June, 2005, engaged in an intimate relationship, and “attempted to preserve the appearance of their marriage.” During this time, they purchased a new home for $790,000, and paid $500,000 for its renovations.

Meanwhile, the husband applied for and was accepted to Harvard University’s Kennedy School of Government; his decision to enroll as a student there was not supported by his wife. The wife began to increase her consumption of alcohol, leading to more arguments with her husband. In June, 2005, at the wife’s request, the husband moved out of the house. He did not file for divorce at that time, believing that while things looked “grim,” filing for divorce would have been the “ultimate declaration” that his marriage was over. After separating from her husband, the wife maintained contact with their RINET financial advisor, inquiring on multiple occasions what the value of any payment to her would be under the terms of the marital agreement. In 2006 the wife became involved in a serious relationship with another man. In February of that year, the wife informed the husband that “one of us has to be strong enough to take the steps to bring closure to our relationship.” She did not commence divorce proceedings. In November, 2006, the husband filed a petition for divorce.

2. Validity of marital agreement. Whether a marital agreement should be recognized in Massachusetts is a long- deferred question of first impression. See Fogg v. Fogg, 409 Mass. 531, 532 n.2 (1991).(6) Consistent with the majority of States to address the issue, see Bratton v. Bratton, 136 S.W.3d 595, 599-600 (Tenn. 2004), we conclude that such agreements may be enforced. See e.g., Matter of Estate of Harber, 104 Ariz. 79, 86 (1969); Casto v. Casto, 508 So. 2d 330, 333 (Fla. 1987); Lipic v. Lipic, 103 S.W.3d 144, 149 (Mo. Ct. App. 2003); Matter of Estate of Gab, 364 N.W.2d 924, 925 (S.D. 1985).(7) Our decision is consistent with our established recognition that a marital relationship need not vitiate contractual rights between the parties. We have, for example, recognized the validity of premarital agreements, Osborne v. Osborne, 384 Mass. 591, 598 (1981), and separation agreements, Knox v. Remick, 371 Mass. 433, 436 (1976), reasoning that it was important to respect the parties’ “freedom to contract” and that such agreements may serve a “useful function” in permitting the parties to arrange their financial affairs “as they best see fit.” DeMatteo v. DeMatteo, 436 Mass. 18, 30 (2002) (concerning premarital agreements). See Osborne v. Osborne, supra (“no reason not to allow persons about to enter into a marriage the freedom to settle their rights in the event their marriage should prove unsuccessful”); Knox v. Remick, supra (“no reason why parties to a separation agreement which anticipates that the marriage will be terminated by divorce may not agree to a permanent resolution of their mutual rights and obligations, including support obligations between them,” provided that judge rules agreement is “not the product of fraud or coercion,” that it is “fair and reasonable,” and that parties agreed to its “finality”).

The wife argues that marital agreements are different in kind and should be declared void against public policy because they are “innately coercive,” “usually” arise when the marriage is already failing, and may “encourage” divorce. The wife provides no support for, and we reject, any assumption that marital agreements are typically executed amid threats of divorce or induced by illusory promises of remaining in a failing marriage. Marital contracts are not the product of classic arm’s-length bargaining, but that does not make them necessarily coercive. Such contracts may inhibit the dissolution of a marriage, or may protect the interests of third parties such as children from a prior relationship. In any event, a marital agreement will always be reviewed by a judge to ensure that coercion or fraud played no part in its execution.

3. Judicial review of a marital agreement. A marital agreement stands on a different footing from both a premarital and a separation agreement.(8) Before marriage, the parties have greater freedom to reject an unsatisfactory premarital contract. See C.P. Kindregan, Jr., & M.L. Inker, Family Law and Practice § 50:15 (3d ed. 2002) (hereinafter Kindregan & Inker) (agreement made in expectation of marriage “radically” different situation from “that which faces a spouse attempting to save a long existing family relationship to which she has committed her best years”); Pacelli v. Pacelli, 319 N.J. Super. 185, 190 (App. Div. 1999) (wife faced more difficult choice “than the bride who is presented with a demand for a pre-nuptial agreement” because cost “would have been the destruction of a family and the stigma of a failed marriage”). See also American Law Institute, Principles of Family Dissolution: Analysis and Recommendations

§ 7.01 comment e (2002) (ALI Principles of Family Dissolution) (“opportunities for hard dealing may be greater” with marital contracts than with premarital contracts).

A separation agreement, in turn, is negotiated when a marriage has failed and the spouses “intend a permanent separation or marital dissolution.” Id. at § 7.01(1)(c). See Knox v. Remick, supra at 436 (separation agreement is “a permanent resolution of [a married couple’s] mutual rights and obligations, including support obligations between them”). The family unit will no longer be kept intact, and the parties may look to their own future economic interests. See Kindregan & Inker, supra (separation agreements, unlike marital agreements, are not executed “when the parties are still hopeful of saving a troubled marriage”). The circumstances surrounding marital agreements in contrast are “pregnant with the opportunity for one party to use the threat of dissolution ‘to bargain themselves into positions of advantage.'” Pacelli v. Pacelli, supra at 195, quoting Mathie v. Mathie, 12 Utah 2d 116, 121 (1961).

For these reasons, we join many other States in concluding that marital agreements must be carefully scrutinized. See, e.g., Casto v. Casto, 508 So. 2d 330, 334 (Fla. 1987) (court “must recognize that parties to a marriage are not dealing at arm’s length, and, consequently, trial judges must carefully examine the circumstances to determine the validity of [marital] agreements”); Matter of Estate of Gab, 364 N.W.2d 924, 925-926 (S.D. 1985), citing Matter of Estate of Harber, 104 Ariz. 79 (1969) (because of “confidential relationship” existing between husband and wife, marital agreements “are subjected to close scrutiny by the courts to insure that they are fair and equitable”); Bratton v. Bratton, 136 S.W.3d 595, 601 (Tenn. 2004) (same). See also ALI Principles of Family Dissolution, supra at § 7.01 Reporter’s Notes to comment e (“the problems presented by the two kinds of agreements [premarital and marital] are different, which has led some states to adopt different rules” for each).

Before a marital agreement is sanctioned by a court, careful scrutiny by the judge should determine at a minimum whether (1) each party has had an opportunity to obtain separate legal counsel of each party’s own choosing;(9) (2) there was fraud or coercion in obtaining the agreement; (3) all assets were fully disclosed by both parties before the agreement was executed; (4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce; and (5) the terms of the agreement are fair and reasonable at the time of execution and at the time of divorce.(10) Where one spouse challenges the enforceability of the agreement, the spouse seeking to enforce the agreement shall bear the burden of satisfying these criteria. See ALI Principles of Family Dissolution, supra at § 7.04 (2) (“A party seeking to enforce an agreement must show that the other party’s consent to it was informed and not obtained under duress”).

We now elaborate on those points as they apply to the marital agreement here.

a. Fraud and coercion. As with contracts generally, marital agreements are not enforceable if tainted by fraud or coercion. Fogg v. Fogg, 409 Mass. 531, 535 (1991). We agree with those States that have held that the spouse seeking to enforce a marital agreement, in contrast to the enforcement of contracts generally, must establish that the other spouse’s consent was not obtained through coercion or fraud. See, e.g., Matter of Estate of Harber, supra at 88 (where marital agreement challenged on grounds of fraud or coercion, it is other party’s “burden to prove by clear and convincing evidence that the agreement was not fraudulent or coerced”).(11) See also ALI Principles of Family Dissolution, supra at § 7.04 comment b (burden shifting reflects appropriate “heightened scrutiny” of bargaining process leading to marital agreements as compared with bargaining process leading to commercial contracts). Cf. Matter of Estate of Gab, supra at 926, quoting Keith v. Keith, 37 S.D. 132, 133 (1916) (“less evidence is required in such cases to establish the fraud, oppression, or deception than if the parties had been dealing at arm’s length as strangers”).

Even though the judge in this case did not utilize a burden- shifting analysis, we see no reason to question her ultimate finding that the marital agreement was not the product of coercion or fraud. The agreement was the product of lengthy negotiations between the parties, each represented by separate, experienced counsel. The wife’s attorney testified that, consistent with the instructions of her client, she intended to negotiate an enforceable marital agreement. A vigorous exchange ensued with the husband’s counsel in which she was able to negotiate significant gains for the wife.(12) The evidence is clear that the wife made an informed, voluntary choice to sign the agreement.(13)

As to fraud, the wife argues that the husband misrepresented his intention to stay in the marriage in order to induce her to sign the agreement. The judge found to the contrary, and her findings are fully supported by the evidence. For example, after the agreement had been signed, the husband worked “hard” in the areas the wife “felt needed improvement.” The couple traveled together extensively. They purchased and substantially renovated a new house together. It was not until over two years later, after the wife had asked the husband to leave the marital home and after she had become involved with another man, that the husband filed for divorce.(14) A judge should be careful to ensure that the contesting spouse has not been misled in any way by a spouse that at the time seems committed. We are confident that the judge did so in this case.

b. Disclosure of assets. We have explained with respect to premarital agreements that “[f]ull and fair” disclosure of each party’s financial circumstances is a “significant aspect” of the parties’ obligation to deal with each other fairly “because they stand in a confidential relationship with each other” and must have such information in order to make an informed decision about the terms of the agreement. DeMatteo v. DeMatteo, 436 Mass. 18, 27 (2002). The obligation is greater with respect to marital agreements because each spouse owes a duty of absolute fidelity to the other. See Krapf v. Krapf, 439 Mass. 97, 103 (2003) (spouses “stand as fiduciaries to each other, and will be held to the highest standards of good faith and fair dealing in the performance of their contractual obligations”). Because a marital agreement is consummated without the safeguards attendant to divorce proceedings, such as court-ordered disclosures, see Rule 401 (a) of the Supplemental Rules of the Probate Court, Mass. Ann. Laws Court Rules, at 1133 (LexisNexis 2008-2009), and discovery, enforcement of a marital agreement can occur only when a judge finds that there was a full disclosure of all assets of both spouses, whether jointly or separately held. The requirement of full disclosure may be satisfied if “prior to signing the agreement the party seeking to enforce it provided the other party with a written statement accurately listing (i) his or her significant assets, and their total approximate market value; (ii) his or her approximate annual income . . . and (iii) any significant future acquisitions, or changes in income, to which the party has a current legal entitlement, or which the party reasonably expects to realize” in the near future. ALI Principles of Family Dissolution, supra at § 7.04(5).(15) The disclosure need not be exact, but must approximate the value of the assets.

We agree with the judge that the disclosures here were sufficient to meet this rigorous standard. The wife argues that the husband undervalued his interest in the Florida real estate, and that he committed a breach of the warranty in the agreement that such disclosures were “accurate and truthful.” The facts as found by the judge belie this claim.(16) During the marriage the wife was aware of her husband’s interest in a “significant amount” of real estate in Florida, that the precise value of that interest was uncertain and speculative, that there was limited information available concerning the real estate, and that the $4 million to $5 million value assigned to those interests by RINET was a “placeholder.”(17) During the negotiation of the agreement, the wife provided her attorney with a December 31, 2003, summary of the parties’ net worth prepared by RINET, and the husband provided a similar June 30, 2004, report. Each summary contained the “placeholder” value, stating that the Florida properties had an “[a]nticipated” value of $5 million. While she was negotiating the marital agreement, the wife had access to the couple’s financial advisor, with whom she previously had regularly met, and her own independent counsel to assist her in making any inquiries about the “placeholder” value that she felt was required. The judge found that the wife was “satisfied” with the disclosures, accepting that the available information about the properties was necessarily limited. Information about the Florida real estate was not, in the judge’s words, “a strong point of contention between the parties.”

The wife acknowledged when she executed the marital agreement that she had “been provided with all information requested,” that she was “afforded sufficient opportunity to inquire and investigate further financial circumstances” of her husband, and that she waived her “rights to further inquiry.” There is nothing in the record to suggest that those representations were inaccurate.(18)

c. Waiver. By the terms of their agreement, the husband and wife agreed that they intended the marital agreement to limit their rights in the event of divorce, and that the agreement should govern “in lieu of and in full discharge and satisfaction of the rights which otherwise arise by reason of their marriage.” As we explained in the context of premarital agreements, waiver is “important because it underscores that each party is exercising a meaningful choice when he or she agrees to give up certain rights.” DeMatteo v. DeMatteo, 436 Mass. 18, 29 (2002). In determining whether there was a meaningful waiver of rights, a judge should consider “whether each party was represented by independent counsel, the adequacy of the time to review the agreement, the parties’ understanding of the terms of the agreement and their effect, and a party’s understanding of his or her rights in the absence of an agreement.” Id. Here, the wife was represented by independent counsel, who represented her over the course of several weeks as the terms of the agreement were negotiated. The wife affirmed in writing that she understood the rights she was waiving, and she does not claim that she did not understand any terms of the agreement. The evidence supports the conclusion that the wife’s waiver was meaningful.

d. Fair and reasonable terms. We turn finally to the requirement that a marital agreement contain terms that are “fair and reasonable” at the time of execution and at the time of divorce. We do not accept the husband’s suggestion that the standard applicable to marital agreements should be the same as the one applicable to premarital agreements. See note 8, supra.(19) As the wife points out, a marital agreement more closely resembles a separation agreement. The statutory rights and obligations conferred by marriage are not potential benefits for a divorcing spouse but an integral aspect of the marriage itself. The Legislature has required that the relinquishment of marital rights be assessed in light of the factors set forth in G. L. c. 208, § 34. In DeMatteo v. DeMatteo, supra at 33, we noted that “it is entirely appropriate” that the judge consider the factors set forth in G. L. c. 208, § 34, in evaluating a separation agreement; the “separation agreement is, after all, a substitute for the independent application by a judge” of the equitable division of parties’ property as mandated by the Legislature. Similar considerations inform our view of the enforceability of marital agreements, with this additional observation: parties to a marital agreement do not bargain as freely as separating spouses may do. See part 3, supra. Because a marital agreement is executed when the parties do not contemplate divorce and when they owe absolute fidelity to each other, the heightened scrutiny to which we made reference earlier applies in this context as well.

In evaluating whether a marital agreement is fair and reasonable at the time of execution, a judge should accordingly consider the entire context in which the agreement was reached, allowing greater latitude for agreements reached where each party is represented by separate counsel of their own choosing. See note 9, supra. A judge may consider “the magnitude of the disparity between the outcome under the agreement and the outcome under otherwise prevailing legal principles,” whether “the purpose of the agreement was to benefit or protect the interests of third parties (such as the children from a prior relationship),” and “the impact of the agreement’s enforcement upon the children of the parties.” ALI Principles of Family Dissolution, supra at § 7.05(3)(a), (c), (d). Other factors may include the length of the marriage, the motives of the contracting spouses, their respective bargaining positions, the circumstances giving rise to the marital agreement, the degree of the pressure, if any, experienced by the contesting spouse, and other circumstances the judge finds relevant.

Viewed at the time of execution, we agree with the judge that the marital agreement at issue here was fair and reasonable. As noted earlier, the wife was represented by experienced, independent counsel throughout the negotiations. In the event of a divorce, the wife was to receive a substantial fixed sum payment from her husband. If the marital estate appreciated in value after execution of the agreement, she would receive, in addition, a percentage of the increase in value; she did not forgo the fixed payment if the marital assets, including the husband’s interest in the Florida real estate, declined substantially. There is no basis to the wife’s claim that the judge “ignore[d]” the husband’s “legal obligation of disclosure of value” of the Florida real estate. As we discussed in detail earlier, the basis of the valuation was known to and accepted by the wife and her lawyer. We see no reason to disturb the judge’s ruling on this point.

In determining whether a marital agreement is fair and reasonable at the time of divorce, a judge will be able to satisfy the searching inquiry we require by examining the same factors employed for evaluating a separation agreement. See Dominick v. Dominick, 18 Mass. App. Ct. 85, 92 (1984). See also Barry v. Barry, 409 Mass. 727, 730 (1991) (judge considering separation agreement pursuant to divorce under G. L. c. 208, § 1A, or G. L. c. 208, § 1B, “should make a ruling at the time of the divorce that the agreement is fair and reasonable”). Thus, a judge may consider, among other factors: “(1) the nature and substance of the objecting party’s complaint; (2) the financial and property division provisions of the agreement as a whole; (3) the context in which the negotiations took place; (4) the complexity of the issues involved; (5) the background and knowledge of the parties; (6) the experience and ability of counsel; (7) the need for and availability of experts to assist the parties and counsel; and (8) the mandatory and, if the judge deems it appropriate, the discretionary factors set forth in G. L. c. 208, § 34″(20) (footnotes omitted). Dominick v. Dominick, supra. As with a judge’s evaluation of separation agreements, the § 34 factors are not determinative; the judge is not required to “divine” what judgment she would likely enter had the case been litigated in the absence of an agreement. Id.(21) Rather, she considers only whether the agreement is “fair and reasonable” when considered in light of the factors we have identified and any other relevant circumstances. Id.

The gravamen of the wife’s complaint is that she will be left with a disproportionately small percentage of the couple’s marital assets. A marital agreement need not provide for an equal distribution of assets, as long as a judge has concluded that the agreement is fair and reasonable. In her careful and detailed findings, the judge considered the factors set forth in G. L. c. § 208, § 34, as well as many of the other factors we have just detailed. The wife points to no material change between the time she, on the advice of counsel, executed the marital agreement and the husband’s petition for divorce in 2006. We again see no reason to conclude that the judge was erroneous in her conclusion.

4. Conclusion. Enforcement of a marital agreement is not contrary to public policy. We agree with the judge in the Probate and Family Court that the marital agreement in this case should be specifically enforced.

Judgment affirmed.

Footnotes
(1) A “postnuptial” or “marital” agreement is an “agreement between spouses who plan to continue their marriage that alters or confirms the legal rights and obligations that would otherwise arise under . . .[the] law governing marital dissolution.” American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations § 7.01(1)(b) (2002) (ALI Principles of Family Dissolution). See Fogg v. Fogg, 409 Mass. 531, 531-532 (1991) (same). Consistent with the ALI, we adopt the term “premarital” agreement for what is often termed a prenuptial or antenuptial agreement, and the term “marital” agreement for what is often termed a postnuptial agreement. See ALI Principles of Family Dissolution, supra at § 7.01(1)(a) and (b).

(2) In September, 2008, the proceedings having been bifurcated, a judgment of divorce nisi was entered on the grounds that the parties’ marriage was irretrievably broken down. The judgment became absolute in December, 2008. The wife neither sought to stay, nor appealed from, that judgment.

(3) We shall refer to the husband’s interests in the trusts and business entities owned by his family as the husband’s interest in Florida real estate.

(4) More specifically, the agreement states that the parties “desire by this Agreement to fix and limit the rights of each of them in and to any property that the other has any right, title or interest, or in the future, may obtain any right, title or interest in the event of dissolution of the parties’ marriage, in lieu of and in full discharge and satisfaction of the rights which otherwise arise by reason of their marriage.”

(5) The agreement defined marital property with specificity and provided a mechanism for determining the wife’s thirty per cent interest.

(6) In Fogg v. Fogg, 409 Mass. 531 (1991), this court left “to another day” the question whether marital agreements were valid, id. at 532 n.2, noting that even if “this type of agreement is valid, it must be free from fraud and coercion,” id. at 532, and affirming the judge’s finding that the agreement in that case was fraudulently induced, id. at 535. See Rubin v. Rubin, 29 Mass. App. Ct. 689, 697 (1991) (marital agreement invalid because it was product of coercion).

(7) Several States have enacted statutes that permit the enforcement of marital agreements. See, e.g., Tibbs v. Anderson, 580 So. 2d 1337, 1339 (Ala. 1991); Boudreaux v. Boudreaux, 745 So. 2d 61, 63 (La. Ct. App. 1999); Button v. Button, 131 Wis. 2d 84, 87-88 (1986). But see Ohio Rev. Code Ann. § 3103.06 (West 2005) (“A husband and wife cannot, by any contract with each other, alter their legal relations, except that they may agree to an immediate separation and make provisions for the support of either of them and their children during the separation”). Many States have not addressed the issue. We are aware of no jurisdiction that has declined to enforce such agreements unless required to do so by statute.

(8) The ALI takes the position that “the principles applicable to marital and premarital agreements are the same” and suggests, as some States have done, applying substantially the same standards for enforcing both types of agreements. ALI Principles of Family Dissolution, supra at § 7.01 Reporter’s Notes to comment e, citing Reese v. Reese, 984 P.2d 987 (Utah 1999). While we draw on some aspects of the ALI’s suggestions on how to evaluate marital agreements, we conclude that the principles applicable to premarital and marital agreements are not the same in all respects.

(9) We do not require, as do some other States, that a marital agreement will be enforceable only if each spouse is represented by separate counsel. See, e.g., Minn. Stat. Ann. § 519.11(1a)(c) (West 2006) (“A postnuptial contract or settlement is valid and enforceable only if at the time of its execution each spouse is represented by separate legal counsel”). Reliance on the advice of experienced, independent legal counsel, however, will go a long way toward ensuring the enforceability of an agreement. Cf. ALI Principles of Family Dissolution, supra at § 7.04 (marital agreement “rebuttably presumed” to satisfy showing that contesting party’s consent was “informed and not obtained under duress” if parties were “advised to obtain independent legal counsel, and had reasonable opportunity to do so before the agreement’s execution”). Here it is undisputed that both parties to this agreement not only had the opportunity to, but did, obtain separate legal counsel.

(10) The wife argues that she did not receive “sufficient” consideration because the financial components of the agreements were “far less” than she was “already entitled to receive” on divorce. In this case, and likely would be in any case, this is in essence an argument that the marital agreement was not fair and reasonable. See part 3.d, infra. Because the marital agreement was supported by consideration, we need not consider whether a marital agreement needs to be supported by consideration. See ALI Principles of Dissolution, supra at § 7.01 (4) (consideration not required to create enforceable marital agreement).

(11) We do not agree with the Arizona court, see Matter of Estate of Harber, 104 Ariz. 79, 88 (1969), that the burden must be satisfied by “clear and convincing” evidence. See ALI Principles of Family Dissolution, supra at § 7.04 comment b (shift burden of proof to spouse seeking to enforce agreement, but not suggesting proof by clear and convincing evidence).

(12) We need not recite the factual findings of the judge that identify with specificity the negotiations and the gains secured by the wife.

(13) The wife suggests that because the parties’ younger son suffers from an illness, she was pressured into signing the agreement to preserve her son’s “happiness and stability.” The judge made no findings concerning the son’s illness or its effect on the wife’s decision to sign the marital agreement. The wife made no request for additional findings on those points, and we do not consider them. It may be that in some circumstances evidence that a spouse agrees to a marital agreement because of concern for the illness of a child and evidence that the child will be harmed by a divorce will be sufficient to establish coercion or duress.

(14) The wife testified at trial that in or around August, 2004, several weeks after the agreement was signed, the parties had a discussion that led the wife to believe that their marriage was over, and the parties then sought the advice of their marriage counsellor, as well as their son’s physician, to consider a separation that would be the least disruptive for him. The wife argues that the judge erred in not allowing her to testify concerning the contents of this conversation, which she claims would have shown that the husband did not intend to stay in the marriage when he asked her to sign the agreement. The judge excluded her testimony on the grounds of “spousal disqualification.” That evidentiary rule provides that “a witness shall not testify as to private conversations with a spouse occurring during their marriage,” see Mass. G. Evid. § 504(b) (2010), but recognizes an exception for proceedings “arising out of or involving a contract between spouses,” id. at § 504(b)(2)(A). We question whether the evidence should have been excluded, given the exception to the spousal disqualification rule. Even if the ruling was erroneous, however, it was harmless. There was ample other evidence to support the judge’s finding that the husband did not fraudulently induce the wife to sign the agreement.

(15) The ALI Principles of Family Dissolution, supra at § 7.04(5), specifies that the spouse seeking to enforce the agreement must have disclosed his income for “each of the preceding three years” and any significant future acquisitions or changes in income that the party “reasonably expects to realize within three years of the agreement’s execution.” We need not determine in this case whether a three-year period is appropriate because in this case the wife was aware of the couple’s marital assets and income, and participated regularly in meetings with the couple’s financial advisor throughout the marriage. See ALI Principles of Family Dissolution, supra at § 7.04(5) comment g (evidence that contesting spouse has knowledge of all other spouse’s assets independent of any written disclosures will satisfy requirement of disclosure).

(16) The judge held a separate hearing to receive evidence as to the husband’s and the wife’s finances, in connection with which each spouse was required to submit financial statements, and each was able to cross-examine the other as to the information in these statements. The judge found that the husband’s financial statement was a “true, accurate and complete” representation of his financial affairs. In contrast, the judge found that the wife’s statements were not an “accurate” picture of her financial affairs because, among other things, she failed to list interest income on over $1 million in brokerage account investments.

(17) In connection with the divorce, the husband contacted his uncle who manages the Florida properties to obtain a rough estimate of their value. The judge credited the husband’s testimony that this was the “best method to obtain a value” for the husband’s interest in the Florida real estate.

(18) In light of these representations, and where the evidence shows that the wife had full knowledge of the limitations on the information concerning the value of the Florida real estate, the judge did not err in denying the wife further discovery in February, 2008, on the value of the Florida properties and excluding the testimony of the wife’s expert as to his opinion of the value of the Florida real estate. It appears from the transcript that the tax assessor was an expert in valuing land, and not in valuing marginal, noncontrolling interests in entities that own land.

(19) We adopted a more deferential standard of review for premarital agreements in part because when “terms of a proposed antenuptial agreement are unsatisfactory, a party is free not to marry.” DeMatteo v. DeMatteo, 436 Mass. 18, 33 (2002). One party, perhaps having significant family wealth, may decline to enter the marriage unless he or she can protect these assets in the event of a divorce. Consequently, a premarital agreement may provide that on divorce there will be great inequality accorded to each party. For a spouse to relinquish statutorily proscribed marital rights to significant assets necessarily requires a more searching inquiry as to whether an agreement is “fair and reasonable.”

(20) In relevant part, G. L. c. 208, § 34, provides that a judge “shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. . . . [T]he court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.”

(21) In evaluating the agreement, the judge is not required to hold an evidentiary hearing, although she may do so in her discretion, as the judge did in this case. See Dominick v. Dominick, 18 Mass. App. Ct. 85, 92 (1984).

Learn more about postnuptial agreements.

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Don’t Take Your Spouse for Granted

Mark Suster is a well-known technology blogger, entrepreneur, and venture capitalist. On the occasion of his wedding anniversal, he departed from his usual tech startup advice to talk about his marriage.mark-suster

When I was in my early 20′s I was fortunate enough to live in a small house in Manhattan Beach, CA with a beautiful ocean view. Having been born in Philly and having been raised in landlocked Sacramento, CA it was truly an amazing thing to literally hear the ocean waves crash every night from my bedroom as I went to sleep and to see the ocean view every morning as I got ready for work.

For weeks or months I gazed at the ocean at every opportunity I could. ”Pinch me – is this my life?” But slowly, strangely and without notice I stopped looking quite as much. I’d love to say that I always appreciated the majesty of the ocean and the sunsets every night. I didn’t. Eventually the ocean view just became life and life was filled with work, stress, bills, cooking dinner, watching football, suffering hangovers, talking on the phone, whatever. The ocean had just become a picture on the wall that I occasionally glanced at. I wish I could say otherwise…

I don’t take my wife for granted at all. Whenever I come home from a day of 8 meetings plus an evening speaking event I always instantly feel serene and I always thank her for that. I am fortunate to come home to my understanding wife who knows what it is that modern workers go through. And I know that I’m not the easiest person in the world: I have strong opinions, I’m self righteous, I’m stubborn and I’m less organized at home than I could be. I’m grateful that I have a true friend & partner who loves me for who I am rather than for my potential.

Read the whole article.

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Functional and Dysfunctional Marriage

I always cry at weddings. It’s not because I think the wedding is so beautiful or the newlyweds are so adorable. It’s because I know (and they don’t) how difficult marriage will be for them. You will see tears on the faces of everyone over a certain age at a wedding, especially those that are or have been married. The truth about marriage is that marriage is difficult for everyone. But the higher truth is that, even though marriage is difficult, it is worth it.

Many of the people that walk into my divorce law firm asking for my services are men or women, recently married, in their 20s or early 30s. They have completed the honeymoon period of 18 months to 2 years, and find that marriage is not at all what they expected it to be. They were surprised and deeply shocked at how quickly the love (and lust) at the beginning turned into rage and disgust.

They did not go to the next stage of their marriage — the stage of communication, cooperation, and learning about the real person with whom they fell in love. There is probably not much that can be done at that point, when the feelings have turned 180 degrees around and the participants of the marriage (or one of them) has a fixed mind-set that the marriage must end.

But it is actually at that point — when a couple experiences the first signs of disagreement, faulty communications, mistrust, repulsion and lack of respect — when the real work of “marriage” can begin. It’s interesting and valuable work. A couple will eventually find that the work on a marriage not only sustains the marriage and helps it deepen, but also promotes personal growth. Marriage and the work it involves is always worth it. And it can even be fun!

A long marriage invariably has its ups and downs, but over time a married couple builds a history of life together and gathers shared memories that strengthen their marriage. As important, each spouse provides one another with the moral and economic support to enhance their mutual and separate lives. A good marriage is a living process that breeds contentment. It is something precious and attainable by many more people than the current fifty percent divorce rate would indicate.

So what can you do when the first thunderclouds hit?

Well, the most obvious thing (and the thing most people don’t think about!) is to do something about it. I am always totally floored by how people spend more time with their hobbies or watching TV than improving their skills in marriage. Even a little time spent learning how to have a better marriage will be worth it. And yes — marriage is a totally, learnable skill.

Couples can try marital therapists, and if they do not progress with one therapist, try another. There are also many books, CDs, courses and internet material available on how to improve marriage. A couple can look at these materials, choose some, and try to apply them. Experimenting with these techniques on each other can be fun! You can also see a mediator, not for divorce, but to try to help you with conflict resolution techniques that will help your marriage. I call this “Mediation to Stay Married”.

It’s best if both spouses work together on this, but if you have a resistant spouse, then read the books (or go to the therapist) yourself, and practice the techniques and insights on your spouse. (When you do this, your spouse might say, with a chuckle, “Are you practicing on me?”) Try anything you can to break bad patterns at the beginning of the marriage when they arise. Otherwise these bad habits can become entrenched and can doom the marriage to unhappiness and discontent.

I find two books especially helpful for married couples. They are The Relationship Handbook by George Pransky, and Taking the War Out of Our Words by Sharon Strand Ellison. I re-read these books often and give them to my clients.

Pransky’s book is short, well organized, and can be read (by the two of you) chapter by chapter. An example is the chapter entitled “It’s Never Too Late to Get A Fresh Start”. Doesn’t’ that sound good? After reading it, you (and your spouse) will believe it and you will be able to begin anew and overcome discouragement and the “tapes” in your head that says the marriage is no good.

Sharon Strand Ellison’s book requires close reading and lots of practice, but it’s worth it. She posits that “power struggle” is at the root of all imbalances in relationships, and has devised a program called “Powerful Non-Defensive Communication”. It is based on eliminating communication problems by learning to ask questions that won’t lead to a defensive response. A great deal of surprising material is uncovered by asking questions in this way, and great progress can be made toward eliminating arguments and improving mutual understanding of each other.

Both the Pransky and the Ellison books can be purchased on the internet. Buy the books, read them, study them, apply them, and experiment with them on your spouse. These techniques really work and may lead you toward a happy marriage. And, you will find an extra benefit. Learning how to improve the dynamics of your marriage will improve your functioning with others everywhere — at your job, with your family and with your friends.

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How to Succeed in Marriage

As a divorce lawyer and mediator, my job is to sort through the wreckage of a marriage to help clients find a post-marriage equilibrium of safety, fairness, and a modicum of peace. I read the signs of the breakdown like reading tea-leaves. The clues are everywhere. The patterns I see repeat themselves over and over again.

The History of a Breakup

Here is a typical pattern: Two people get together. They love each other. They are, in fact, “in love”. They then get married and perhaps have children. The children occupy their attention greatly. The husband (usually) spends great time and effort in the workplace trying to earn enough money to support the family to provide a good and secure lifestyle. The wife (usually) has a less demanding schedule, but pours her part of her effort into creating a home and raising the children.

The wife begins to feel that the husband’s work is more important than her. The husband begins to feel that the wife cares about the children more than she cares about him. They spend little time alone together. They each feel abandoned by the other. Their relationship starts to suffer. They find themselves feeling alone, feeling badly used, and angry at the other partner.

Several years later … at this point, they are almost not talking to each other. Their feelings of love have turned to feelings of hatred and contempt. Many angry interchanges (some in front of the children) have occurred.

They are each ruminating about the possibility of divorce many times during each day. If you counted the times, it would probably exceed 200 each. Thoughts of divorce are obsessing them, much like the proverbial bee in the bonnet.

Why Marriage Counseling “Didn’t Work”

There were a number of reasons that this couple saw “no results” after four sessions with the marital counselor.

The couple thought results should happen in four sessions after many years of a poor marital partnership. Their full and complete effort was stymied by their obsessive thoughts. They were simply unable to let go of their private mental thoughts contemplating divorce. The couple was unable to appreciate perhaps the one single kernel of useful advice that could have turned around their marriage. They expected the marital counseling to solve everything. They could not let go of the common (really universal) idea that the problem was in the other spouse. This means, that in their view, they could “do better” with another future partner. (This is statistically not the case!)

Our hypothetical couple quits marital therapy. They each see a divorce lawyer (or jointly see a divorce mediator) to execute their divorce and destroy their marriage once and for all. The divorce lawyer or mediator does what he/she was hired to do. The marriage is ended. They go on to a highly restricted financial life, hope that their children are not too badly harmed, find another partner, and start all over again. Years later they admit that if they knew back then what they knew now, they’d have known that the first marriage was not fatally flawed. They realize that they could have worked on the first marriage, and it could have succeeded! But back then, they were young and callow, and they simply just didn’t know the skills involved for having a successful marriage.

How to Succeed in Marriage

Marriage is a very complicated art. If you ask anyone who has been married for a long time, you’ll get the response that marriage is one of the hardest things in the world. It is a learned skill. It takes patience, care, determination, forgiveness, and humility. It is as difficult as learning how to be a nuclear physicist or playing the violin. A successful marriage takes many hours and years of deliberate practice. People in long-term marriages have become expert at doing it. Although this may sound rather grim, there is a wonderful feeling between long-term spouses, and a rich shared history that can only come with the passage of time and navigating life’s many setbacks and experiences together.

So what do you newlyweds (and not so newlyweds) need to do?

Don’t let thoughts of divorce overcome you. They become an obsession which will not let you deal with the present – your marriage, your spouse, and your life together. Divorce may come, but don’t speed it up by these thoughts. Remove that bonnet with all its bees! If a thought of divorce comes into your mind, banish it. It is merely a thought, a mental fantasy. It is not something in the present. It is a made-up future.

See that the glass is half full, not half empty. Marriage is all about visualization. Appreciate the good things that come in the relationship; try to let the bad things roll off you.

Get into individual therapy. In many troubled marriages one or the other partner has emotional difficulties. Work on them. Psychological work can really produce results. Find a therapist you feel understands you and can provide helpful feedback. Find a new therapist if this is not happening for you. But remember, the therapy is there for you to gain insight and find a solution for your own problems. Also remember that therapy won’t solve all your problems. If you learn one or two things in therapy, these can be enough to move yourself from a place of stress and unhappiness. Therapy is helpful, but not a cure-all for everything.

Don’t blame the other spouse. Many spouses in a marriage in trouble overuse the blaming game. You can’t control or change your spouse’s behavior except to a very minor degree. That’s just the way things are. Accept it. Take responsibility for your own life. Own your own destiny to create your personal happiness, contentment and fulfillment. Marriage is not supposed to provide this mutual satisfaction. It is your self-actualization into fulfillment of your own separate lives that will produce the best marriage with another like-minded person, your spouse.

Use marital therapy as a resource. Seeing a marital counselor together can provide a warring couple with useful tools. Again, do not expect the marital therapy to solve all the flaws in your marriage. This is work you need to do as a couple, and also work on your individual selves. If you expect marital therapy to solve all your marital problems, you will leave the therapy thinking it is not a success and proceed to divorce court. Be grateful for the few things (even only one thing) that you might learn in marital counseling, and practice them in your relationship. A marriage proceeds and improves by tiny, incremental steps. If you make it to the next day, you have the opportunity for further change and improvement in your marriage.

Employ all the resources available. These include books, CDs, web material, and workshops. My favorite books are The Relationship Handbook, by George Pransky, and Taking the War out of Our Words, by Sharon Strand Ellison. Read the books with your spouse over and over again. Learn the techniques. Practice them. Things can and will get better.

Try Marital Mediation. Mediation is a dispute resolution technique that has worked in many business, workplace, and legal contexts. Most people know that “divorce mediation” exists. However, people are beginning to use mediation as a tool for preserving and improving their marriages. Search “Marital Mediation” and “Mediation to Stay Married” on the internet, and find someone in your area willing to work with you and your spouse. Marital Mediation can be very effective. For more information, visit my website www.mediationtostaymarried.com. Marital mediation is good for couples who are envisioning “marriage” rather than “divorce”.

Be patient. Your marital difficulties did not build up in a day. Don’t expect improvement to be immediate. Improving your marriage (and your marriage skills) will take some time. Work on it. Believe it can happen. Do everything you can. It is possible to turn the direction of your marriage. It is pretty much all in your head and within your capabilities.

Let thoughts of a happy, committed marriage be the new bee in your bonnet. You may find that you enjoy the new spousal relationship you and your spouse have forged. And you may be very thankful that you did not throw your marriage away.

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Practical advice for your marriage from a divorce attorney

As a practicing divorce attorney and divorce mediator, I’ve met a number of couples that, if they had been given some good advice (and had remembered that advice) a few years or even months earlier, they would not be divorcing. The following advice is based on my observations as a divorce attorney, a mediator/conflict resolver, and as an experienced, mature married person.

1. Think before you speak. People in marriages tend to have very “hot” buttons causing frequent arguments. One reason for this is that the boundaries that exist at the workplace or with friends and relatives do not exist in a marriage. Much of marital bickering can be lessened or mitigated if you wait before you respond to something that has made you angry. If you think for even five seconds before you respond, the amount of marital bickering will be greatly reduced. It may be better to discuss the difficult issue on another day when the emotions are not so high. You can broach the topic (at that later time) by saying, “Dear, I have some unfinished business to discuss with you. May we discuss it now?”

2. Don’t give up. If you ask any married person, he or she will tell you that marriages wax and wane. There are good times, bad times, and even middle times. A marriage is viable if the good outweighs the bad, even by a little bit. Appreciate the good and try to let the bad roll off of you like water from a duck. The more you stick to it, the easier it will get and the more fondness and connection you will feel towards your spouse. You will also feel good about yourself, because you worked very hard to achieve something of value.

3. Give your marriage as much (if not more) focused attention than you give your hobbies. People spend huge amounts of time, money and effort on their off-work interests. But when a marriage is making them feel bad, everybody seems to “throw up their arms” and decide that it’s useless to try anymore. Actually, reading books on marriage, conflict resolution, and communication techniques will help your marriage. Getting your spouse to read them is even better, but not necessary, to being able to make huge positive changes in your marriage.

4. Treat your spouse better than you treat anyone else. Did you ever hear the expression “familiarity breeds contempt”? This seems to apply in marriages. As a result, the unfortunate truth is that people tend to treat their spouses worse than strangers. An example of this is the all-too-common behavior of treating the spouse (sometimes ever so subtly) with contempt. Who is this person you are married to now? And who was that wonderful, beautiful perfect person you married so many years ago? Believe it or not, it’s the same person. Remember those times and retrain yourself to view your spouse with the utmost respect and treat your spouse accordingly.

5. Have Separate Interests. Make sure you have some private space and give your spouse some too. Marriage entails a lot of togetherness, but just because you’re married, you don’t need to be joined at the hip. Make sure each of you has time away from the other with friends, family, or alone. Enjoy your separate interests. Having separate time and interests will help vitalize the marriage.

6. Foster and encourage your spouse’s dreams and goals. In a successful marriage, one spouse is happy for the other spouse’s successes. Good spouses foster the other in achieving their goals. Sometimes goals are scary and need to be carefully evaluated, such as a career change. Do the work together, so that each of you can become satisfied with your own life. Good spouses help each other make the most out of his or her life.

7. Find things you enjoy to do together. A marriage is a partnership. If you both have totally separate interests, you will eventually grow apart. Make time to pursue interests together. These leisure activities and interests will probably change over time. Find shared interests, pursuits, and enjoyment. But remember, you don’t need to share all interests.

8. Don’t think its greener on the other side. Most people who leave their marriages for someone else almost always find the same problems on the other side. Many realize where their first marriage went wrong, and how they (and their spouse) could have worked to fix it. With hindsight, many people regret not having worked things out in their first marriage. Remember, when you get divorced, you now have two problems ? the problems in your marriage (that you did not solve) and the divorce.

9. Give each other a break. Don’t be overcritical of your spouse. Don’t carp all the time. The stark realization that comes after the wedding is that you are not the same person. But that’s not a bad thing. Try to appreciate your differences. Admittedly, this is hard to do, but try. It’s worth it.

10. Don’t sweat the little things. As in the world of work, it is important to have priorities. Spouses get angry when criticized over every little thing. Try to prioritize the important things that you want. Carefully pick your battles. Let the other stuff slide. Don’t be a nag and complain about every little thing. If you don’t like something hold your tongue. Try to roll with the punches.

11. If your spouse loves something (like his/her mother, or football), try find out why, and you’ll find you’ll love it too. Give your spouse credence and respect your spouse’s judgment, interests, affinities, and opinions. If your spouse is drawn to certain people or things, there is probably a good reason. Ask your spouse to explain. It might open up a new world to you.

12. Compliment your spouse every day, at least once. This leads towards a healthy relationship, and it is the right thing to do, because unless your spouse is a total slouch, he or she is doing many good things every day. Thank your spouse for all the wonderful things your spouse does for you and your family. Make sure your spouse knows that you appreciate his or her efforts.

13. Work hard with your spouse to create financial security. One of the beneficial effects of marriage is the creation of a strong economic joint venture. As your financial security builds up, it will be one of the things that allows you to feel good about each other and the world. It will also be a measure of the good work you’ve both done during your marriage. Financial security is a good thing and provides the foundation of a happy life.

14. Be your spouse’s partner. Keep each other informed as to activities you are engaged in, including your work days and what you do at home. The time you spend separately outside in the world every day is very significant. Always talk to each other at the end of the day about how your respective days have been. Respect and show awareness of and curiosity about your spouse’s separate interests.

15. Always assume the best of your spouse. People have misunderstandings and miscommunications. This is true even of people who know each other very well, such as spouses. If you spouse’s actions displease you, wait a bit, and then try to find out the motivation. You might well find that the motivation was meant to be constructive and not negative, and that you may have made the wrong interpretation or assumptions about what had been said or done.

16. Give your spouse a treat occasionally. Spouses have different things that make them feel good. If you know something that your spouse likes, give it to them sometimes even if you don’t care for it. It can be a small thing: a trip to the movies, a ride to a place your spouse likes to go, or maybe a favorite food bought from the grocery store. Be generous to your spouse, even if it is not in your nature.

17. Don’t fight with your spouse about the kids. Disagreements about children can be very corrosive to a marriage. Have your discussions off-line so that your children do not know you disagree. Get professional help if needed as to how to coordinate and respect your different views. Don’t let your disagreements about your children destroy your marriage.

18. Don’t complain about your spouse to your friends and family. One complaint at a low time in your marriage will resonate with the listener long after the problem or the short-lived spat was resolved. Your family and friends will always see your spouse in the same bad light in which you saw your spouse during this period of conflict. If you need to talk with someone about your marriage, choose an independent professional.

19. Be faithful and do not have an affair. A couple that is unattractive (physically or otherwise) is actually really lucky in a marriage because outside forces will not be as strong. However, if you or your spouse is unlucky enough to be attractive, don’t take the bait. It never works out. If you can’t resist having an affair, end your marriage first. When you actually think about it, you’ll probably find that you can’t end your marriage and things will have gotten better.

20. Find ways to enrich your lives. Learn and do new things together. In good marriages the spouses are always changing, growing, and developing new interests. Make sure that some of these changes and new interests are shared jointly, so that you can spend good time together developing as people.

21. Spend time together with mutual friends. Outside friendships pursued by the couple jointly are very good for marital health. The outside friends can be single people, or other couples. It does not matter. The important part is that you and your spouse share these friendships together.

22. Forgive each other. If you hold grudges, you’ll never get anywhere in marriage. Every spouse (even you!) makes mistakes and treats the other poorly at time. You must be able to forgive your spouse for the wrongs done to you and move on. Remember that the next time it may be you who needs to be forgiven. Marriage is very long. There are bound to be many bad things to happen between you. Do not hold onto these things. Forgive and move on.

23. Appreciate each other’s contributions to the marital venture. Marriages often fail because of perceived differences in the level of contribution of each party. Try to appreciate the other person’s contributions, whether financial or keeping the household together. Try not to impose your standards of how things should be accomplished on your spouse. Be appreciative of your spouse’s efforts at all times.

24. Be secure in the fact that marriage is forever. Marriage is a safe container for people to work out all their personal issues. Because it does not end (except by death), a person can have the security that any mistakes, personality flaws, misspoken words, can be forgiven. There is something about the alchemy of two people with a “forever” commitment that helps people find peace and satisfaction in life.

25. Don’t think that marriage is easy. One of the little-known but most important paradoxes about marriage is that it is an incubator for self-growth and self-awareness. This is a surprise to many, because marriage is supposed to be about the other person, or about the couple, or about “love”. Take advantage of your chance to perfect your awareness and ability to enjoy life and relate well to other people. A good marriage will have this effect, and redound to your ability to function well in the world and live at your highest practical and spiritual level. Marriage is not easy. But it’s worth it.

If you do all these things, and if, before you break up, you wait at least as long as you have been already married for roughs spots to work themselves out, you will have a long, happy marriage.

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The Art of Powerful Non-Defensive Communication

Intrigued by the title of the workshop and feeling that I needed to work on my skills in managing effective communication, I came to the Toronto IACP conference early to take the all-day Pre-Forum workshop on “Powerful Non-Defensive Communication” (“PNDC”), presented by Sharon Strand Ellison. The workshop was packed with enthusiastic collaborative practitioners who, like me, were highly motivated to work on “Taking the War Out of Our Words”, as Ellison puts it in the title of her book.

Power Struggle as a Global Problem.

Ellison’s premise is that power struggle is the most pervasive and least-recognized addiction in the world. When there are conflicting views, we immediately have a negative reaction to the person who disagrees with us. We are likely to jump to the conclusion that the person is not intelligent, or intentionally mean, hurtful, destructive or rude. When a follow-up fact-finding question is asked in an open, honest, neutral and inviting manner, the other person becomes non-defensive and, as Ellison puts it, is “dis-armed”. The response to the powerful non-defensive (PND) question is often transformative and amazing. In her workshop, Ellison gives many compelling and powerful instances of Powerful Non-Defensive Communication (PNDC) exchanges.

For instance, if you ask a person “Is that how you peel potatoes?”, the person will become immediately defensive and upset, even though there is no potato in the person’s hands. The reason for this is that the question engages the person’s “limbic brain”, which is hard-wired for the defensive fight or flight response. The way in which a question is asked (for instance, the tone of voice, the choice of words) can instantly engage the “limbic brain”, completely skipping over the person’s “thinking brain”.

Ellison points out how strongly the engagement of the limbic brain impairs our work in divorce, particularly in having effective team/client meetings and productive interchanges between the divorcing couple. As Ellison says, if people can shut down and become defensive in a nanosecond, openness to listening to and understanding others and mutual connection and problem-solving work is impeded. Once the limbic alarm system is set off, it stays active for 20 minutes to an hour, further worsening the problem. This can very quickly destroy the effectiveness of a multi-party collaborative meeting with divorcing clients and the collaborative team. Ellison asks, “How can there be peace in the world, if people can get defensive in a nanosecond?”

The Powerful Non-Defensive Question

At the core of PNDC is the PND question. In Ellison’s workshop, we worked on listening to, and practicing the tone of voice needed to ask a question innocently (even “musingly”, as Ellison puts it), to make sure the other person’s limbic alarm system is not triggered. Ellison asks PND questions to elicit non-defensive responses, instead of arguing with a person or trying to convince the person to agree with her.

Although Ellison’s premise as to how to address power struggle and defensiveness may seem simple, implementing the highly transformative PNDC techniques is quite challenging to master. Putting into effect PNDC at the moment of a verbal interchange by formulating a PND question is difficult. Emotions get the better of us and our speech becomes reactive. With lots of practice, however, it can become part of our arsenal (excuse the word — perhaps toolbox would be better?) of social interchange skills for us to use in our collaborative practices and elsewhere in our daily lives.

For instance, you can ask a person to explain what he or she meant before you react to it. You can do this by asking a question by starting “What do you mean by …” Often you will be surprised at the new information you get, or how your assumptions as to what the other person meant were incorrect. Ellison teaches us to stay in a state of inquiry, and try not to fill information in with our own assumptions.

An effective method used in PNDC is asking a person directly about his/her intentions. When a person says something that seems negative or insulting, we tend to avoid asking the person directly. By asking, you may find out that the intention was not negative as you previously thought. Perhaps the intent was totally different, and the statement was not meant as an attack or criticism. Or, you might find just the opposite: the person did mean to attack and was being critical or negative. With either result, you have increased your understanding and the mutual exchange can be transformative when done in an open, honest, curious, non-defensive way.

Ellison teaches us to be aware of many types of communication problems. These include stating opinion as fact, identifying tones of voice and facial expressions that indicate covert messages (which can be decoded with proper PND questions), accepting your own assumptions without questioning them, and trying to convince someone of something (it’s almost never successful and always causes defensiveness).

PNDC and “Active Listening”

Ellison also had some interesting comments on the use of “active listening” in mediation and Collaborative Practice. This is the technique of repeating or rephrasing something said by the speaker, so that they know you are empathetic and they know that you have understood them. She believes that this technique often projects a false and shallow veneer of understanding, especially when you disagree with what is said, that greatly reduces its effectiveness. Ellison suggests that the language the active listener uses should not be merely a repetition or a paraphrase, but should go further in defining and understanding the various components of what the speaker said. Asking multiple active listening questions aimed at the various elements and specific words in the statement that is being actively listened to can be very powerful. When the statement is broken down like this, the speaker has a chance to respond and rearticulate what was said in its many aspects and in all its ramifications in the fullest manner possible. This gives a more accurate expression to the complexity of human life and subtlety of thought and emotion. It increases understanding and furthers mutual respect.

The Powerful Non-Defensive Statement

Another feature of PNDC is the use of the non-defensive statement. When we speak truthfully and openly, without fear and without hiding, our vulnerability can strengthen the statement and elicit a positive response. When we are guarded and hide information, our ability to resolve problems and work creatively with each other is impeded. As a result, when we are vulnerable and direct at the same time, we actually become more effective. When we state our own reactions to what another is saying in a neutral, sincere, honest way, defensiveness is eliminated, clarity can be achieved, and progress can follow. This aspect of PNDC may be difficult for attorney-Collaborative Practitioners to absorb, because in our legal training we learn that it is dangerous for our clients to put “everything on the table”.

Conclusion

Ellison’s teachings seem simple, but putting them into practice takes much attention and training. Learning how to formulate PND questions “on your feet” during interchanges requires a lot of work. I have been reading and re-reading Ellison’s book, and I am working to get better at PNDC skills in my law practice, my collaborative practice, and at home. I think incorporating PNDC into my life will be a very worthwhile undertaking.

Getting the book:
“Taking the War Out of Our Words: The Art of Powerful Non-Defensive Communication”, by Sharon Strand Ellison, Wyatt-MacKenzie Publishing, Inc. (Third ed. 2007), $16.95. Available through Sharon’s website www.pndc.com, and through www.amazon.com. A set of 12 CDs of Sharon Ellison reading her book is available through www.pndc.com This is an excellent way to learn her techniques and how to formulate non-defensive questions. You can practice asking PND questions in the proper non-accusatory but curious tone of voice in the privacy of your car during your morning commute.

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