POSTNUPTIAL AGREEMENTS IN MASSACHUSETTS: THE IMPORTANCE OF LEGAL COUNSEL

Saturday, August 6th, 2011

by Marion Lee Wasserman

For married couples who want to contractually settle certain financial matters between them as a means of strengthening and stabilizing their marriage, the case of Ansin v. Craven-Ansin, decided by the Massachusetts Supreme Judicial Court in 2010, was great news.  In the Ansin case, married couples in Massachusetts were deemed, for the first time, to have a clear right to enter into so-called postnuptial agreements (also called marital agreements) and to rely on those agreements in the event of a later divorce, provided the agreement meets certain criteria.  The caveat here is that, in the event of divorce, the party seeking to enforce the agreement bears the burden of proving to the court that the criteria have been met.  This burden of proof will be significantly harder to meet if the party has not had adequate legal representation in the negotiation of the agreement.

According to Ansin, for a postnuptial agreement to be enforceable in connection with a  divorce, five  criteria, at a minimum, must be met:  (i) opportunity to obtain separate legal counsel of each party’s own choosing;   (ii) absence of fraud or coercion; (iii) full asset disclosure before execution of the agreement; (iv) knowing and explicit waiver of marital rights and of the right to a judicial equitable division of assets in the event of divorce; and (v) fairness and reasonableness at the time of execution and at the time of divorce.

The Court’s in-depth analysis of criteria (ii) through (v) takes into account the participation of independent, experienced legal counsel in the negotiation of the agreement.  In other words, it is not merely the opportunity to obtain counsel that is important, as specified in the first requirement.  The actual participation of counsel is scrutinized as well and is examined in applying each of the remaining four requirements.  In Ansin, the Court finds that the postnuptial agreement is enforceable against the wife.  The wife’s having had the benefit of counsel in the negotiation of the agreement is a significant factor in convincing the Court to reach this conclusion.

The safest approach to negotiating a postnuptial agreement  — assuming the parties desire to have the agreement be enforced if the marriage should end in divorce — is for each party to have the benefit of independent counsel during the negotiations.  This means that if the negotiations are carried out in mediation, the parties would be well-advised to have independent counsel review the mediated postnuptial agreement, whether or not the mediator is an attorney.

In Ansin, the Court provides an interesting footnote on the issue of independent legal counsel:
“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. …Reliance on the advice of experienced, independent legal counsel, however, will go a long way toward ensuring the enforceability of an agreement. … Here it is undisputed that both parties to this agreement not only had the opportunity to, but did, obtain separate legal counsel.”  (FN9)

Copyright © 2011  Marion Lee Wasserman.  All rights reserved.

The above article is provided for general informational purposes.  This article is based on Massachusetts law and applies to Massachusetts only.  Furthermore, it is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal advice or legal opinion or as tax advice or as establishing an attorney-client relationship.

FEAR AND DIVORCE: A FOUR-LETTER TOOL FOR MOVING THE DIVORCE PROCESS FORWARD

Wednesday, June 1st, 2011

by Marion Lee Wasserman

This article has been published in the Family Mediation Quarterly of the Massachusetts Council on Family Mediation, Summer 2011 issue.

Fear and divorce go together.  Pointing this out to divorcing individuals as part of the divorce process can be extremely helpful.  “Fear” is a powerful word.  It puts the truth of the matter, emotionally speaking, on the table — plainly, clearly, non-euphemistically.  When the divorce client I am representing is angry at his or her spouse and feels too hurt to negotiate, or when spouses in divorce mediation are each so convinced of their conflicting positions on an issue that constructive conversation has come to a halt, I often find that this evocative word — FEAR — is a key that can be inserted into the process to move it forward.

Take, for example, Matt, a husband in mediation who is angry at his wife, Jen, because, without prior notice to him, and in violation of a written mediation agreement they signed, she has withdrawn ten thousand dollars from their joint savings account and deposited it into a new, individual account in her name.  Even though there is still a hefty sum in the joint account, and even though the parties agreed at the prior session to eventually divide the joint account fifty-fifty, Matt is hurt and angry because Jen moved a portion of the funds without talking it over first with him.

In this case, I might say to Matt, “You know … everyone going through a divorce is struggling with a set of fears.  Everyone.  It’s part of the territory.”  (Pause.  Matt nods.  I continue.)  “I’m guessing that you have a set of fears about what the divorce will mean.”  (Matt nods some more.)  “And I’m guessing that Jen does, too.”  (I look at Jen.  She is nodding, too.)  “You each have a different set of fears.  But there may also be overlap.  Some fears may be the same for both of you.  You each know what your own fears are.  It may be really helpful to our process if you can each understand more about the other’s fears.”  At this point, I may ask Jen what some of her fears are.  I may then ask Matt about his.  Or I may ask each party to tell us one of the fears he or she thinks the other party has.

In the above example, the conversation about fear leads to greater understanding and empathy between Matt and Jen.  One of Jen’s fears is that she will have trouble functioning on her own after the divorce.  She opened her own bank account in order to have funds available to help her start experiencing what it feels like to act more independently than she has in the past … especially now that she has moved into an apartment of her own.  Matt begins to feel less hurt and angry when he understands Jen’s fears.  Jen, for her part, apologizes for having acted unilaterally in withdrawing joint funds.

Although one might expect divorce clients to want to avoid the subject of fear, I have found that clients find it a relief to discuss fear head-on.  Divorcing spouses are relieved to acknowledge and confront their own forebodings and to acknowledge each other’s as well.  This acknowledgement comes from an authentic place in each individual, and for that reason it is a powerful tool for moving the divorce settlement process forward.

Copyright © 2011 Marion Lee Wasserman.  All rights reserved.

The above article is provided for general informational purposes.  The case facts and client names used in this article are fictional.  This article should not be construed or applied as legal advice or legal opinion or as tax advice or as establishing an attorney-client relationship.

DIVORCE MEDIATION

Monday, November 1st, 2010

by Marion Lee Wasserman

An informational article originally prepared by Ms. Wasserman for a workshop presented by her at the Harvard Medical Center of Harvard University.

How Does Divorce Mediation Work?

In divorce mediation, the couple sits down together in a cooperative spirit instead of using lawyers to one-up each other in an adversarial contest. To their great benefit, the couple avoids the cost, inefficiency and bitterness of the traditional divorce process. Following mediation ground-rules agreed upon at the outset, the couple uses the mediation process to reach agreement on issues requiring resolution for their divorce. The mediator does not judge the couple or act as a therapist. The mediator encourages the couple to engage in balanced, forward-looking negotiation and to achieve compromise that is fair and practical. An experienced, qualified mediator knows what issues need to be covered in a divorce agreement and guides each couple accordingly.

How Does the Actual Divorce Follow?

Part of the mediator’s role is to put the agreed-to terms into a written agreement, so that the couple can file the agreement with the appropriate court. In general, provided the agreement is “equitable” and provided it is consistent with the best interests of any children of the marriage, the agreement will be approved by the court and incorporated into a divorce decree. Ms. Wasserman is knowledgeable regarding court-applied standards of what is “equitable,” enabling her to assist the couple appropriately as they negotiate matters of property division, support and parenting.

Should the Mediator Be A Lawyer?

If the mediator is a lawyer, the mediator is permitted to prepare the agreement — the so-called “Separation Agreement”– in its complete and final form. Non-lawyer mediators, and some lawyer mediators, prepare a memorandum rather than a final agreement. The couple then asks a lawyer to put the memorandum into court-ready form, containing clauses covering certain legal points not included in the memorandum. The couple should be aware of this distinction, and the couple should also make certain that the mediator they select — whether lawyer or non-lawyer — has a thorough knowledge of and understanding of divorce law and procedure, because divorce mediation takes place within a legal context and divorce agreements have legal consequences.

Will Husband and Wife Each Need Their Own Lawyer?

The mediator is acting as a neutral third-party, not as legal counsel. Whether or not the mediator is a lawyer, each party is advised to have individual, mediation-friendly legal counsel for consultation on issues of special concern and for looking over the agreement in order to suggest any necessary changes. If the lawyer is present in the background, and if the lawyer is indeed mediation-friendly, then the lawyer’s involvement will be efficient and limited and will serve to enhance the mediation process.

Will the Mediator Really Be Neutral?

Each party to the mediation will have an opportunity to explain his or her individual perspective on the issues. It is part of the mediator’s role to allow time for this, to listen attentively to each party and to help the parties listen to each other. Ms. Wasserman has extensive training on the subject of neutrality, including gender neutrality, and she knows how essential it is that she not judge the parties or choose sides. She appreciates the emotional and financial complexities of each couple’s situation and uses the mediation process to gain an understanding based on real issues, not surface impressions.

Will the Mediator Answer Financial Questions?

Although the mediator is not acting as an accountant or financial advisor, the mediator should be knowledgeable about tax and financial issues that arise in connection with divorce. Ms. Wasserman has the knowledge and experience to answer many questions in these areas and also provide appropriate referrals to other professionals, as specific issues arise that require outside expertise. Such professionals may include accountants, business or real estate appraisers, pension actuaries or financial advisors. One advantage of the mediation process is that the couple uses outside professionals on a limited, as-needed basis, in order to gain specific information or advice contributing to positive negotiation — a major departure from the costly, inefficient use of professionals as adversarial experts in traditional divorce contests.

Copyright © 2002-2011 Marion Lee Wasserman.  All rights reserved.

The above article is provided for general informational purposes. This article is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal advice or legal opinion or as establishing an attorney-client relationship.