Tuesday, December 7, 2010

What if I want to try Reconciliation? Is there a way to protect myself?

One of the questions that I ask clients in our free 1-hour initial divorce consultation, is whether or not they believe their marriage is irretrievably broken down with no chance of reconciliation. This is the standard in Massachusetts for a Judge granting a divorce. Many potential clients, despite having scheduled a divorce consultation, are actually unable to answer this question because there is still some "chance of reconciliation." In these instances I explain their rights in a potential divorce case but recommend that they try counseling and not come back to my office unless they are sure about their answer. For some, they fear that trying to reconcile will put them in a vulnerable position financially and for those instances there is now a solution: Post-nuptial agreements (also called marital agreements) allow married couples to make contracts that will control what happens if they get divorced.

A post-nuptial agreement can resolve the financial concerns and assure someone they are protected, so they can then focus their energies on a true reconciliation without worrying if they are being taken advantage of. Similar to a pre-nuptial agreement, there are very specific restrictions, on how a post-nuptial must be created for it to be enforceable in Massachusetts.

As delineated by a recent Massachusetts Supreme Court case, there are even more requirements for a valid and enforceable post-nuptial agreement than there are for a pre-nuptial agreement (though many of the requirements are similar). Ansin v. Craven-Ansin, No. SJC-10548, July 16, 2010.

Links to news stories, the opinions of numerous attorneys and mediators as well as the Ansin opinion itself are all available at MaritalMediation.com. As a summary, the Ansin decision requires that a post-nuptial agreement withstand the following scrutiny to be upheld:

  • Both parties must have had the "opportunity for counsel of own choosing."
  • The agreement must be in writing.
  • The agreement must be made with clear knowledge of the specific marital rights being waived.
  • There must not be any fraud or coercion.
  • The agreement must be fair and reasonable in view of M.G.L. c. 208 s 34 and not so different from a division under that statute as to be unreasonable.
  • The agreement must be fair with respect to the impact it will have on the children of the marriage.
  • The agreement must be fair with respect to the impact it will have on any third parties.
  • The parties must have disclosed in writing a statement of assets with approximate values.
  • The parties must have disclosed in writing a statement of their approximate income.
  • The parties must have disclosed in writing a statement of any reasonably expected income changes in the "near future".
  • The commitment to reconciliation must not be falsely misleading.

In order to ensure that you comply with these requirements, each party to a post-nuptial agreement should consult with their own counsel and review this list (as well as the Ansin decision).

Thank you to Fern Frolin of Grindle, Robinson, GoodHue & Frolin for bringing this latest news to our attention in her presentation at the MCFM Family Mediation Institute on November, 22, 2010.

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