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Postnuptial Agreements: Can These Potentially Save Your Marriage?

By Amanda Driscoll, Law Clerk*

Ethel Brown and Francis Brown** who reside in Massachusetts have had disagreements over finances for the last few years.  Two of the three wonderful children are finally out of college and the third just finished trade school.  They have been married for 25 years and would like to stay married.  They won’t call their marriage rocky, but they argue over money. They were considering going to a marriage counselor, but wonder if there is another way to help them stay married and decrease the conflict about financial issues.  If they have deep-rooted problems, such as financial security worries or a spouse’s expensive habits, there is another option.

Another way to identify and resolve marital concerns is by constructing a postnuptial agreement. Postnuptial agreements, sometimes referred to as “postnups,” are written and implemented after the marriage has been formed. This agreement states the obligations and responsibilities each partner in a marriage is obligated to carry out. In fact, marriage is an economic partnership, thus both partners can benefit from a contract in writing describing marital terms and conditions.

Until recently, two types of enforceable contracts had been used in Massachusetts to define property rights upon divorce. These two types were prenuptial agreements and separation agreements. Prenuptial agreements are implemented before the parties marry, whereas separation agreements are at the time the parties divorce.

In 2010, the Massachusetts Supreme Judicial Court (SJC) authorized a third option: postnuptial agreements. Postnuptial agreements are executed after the marriage agreement has been formed and before the spouses have expressed intent to divorce. Postnuptial agreements resemble separation agreements more than prenuptial agreements, since if one of the spousal partners does not agree with the terms of agreement, the parties are nevertheless bound to the agreement. In contrast, if a person is dissatisfied with the terms of a prenuptial agreement, that person can walk away and not get married. Once the two parties are married, however, rights and obligations are solidified, and the spousal partners are generally bound by the terms of their premarital agreement.

In Ansin v. Craven-Ansin, 457 Mass. 283 (2010), the Supreme Judicial Court in Massachusetts held that postnuptial agreements are not automatically unenforceable as a matter of public policy. However, not all postnuptial agreements will be enforced by the court. In order for postnuptial agreements to be enforceable, the agreement must pass a five-factor test. The most significant part is the question as to whether the agreement is fair and reasonable, and the other four factors help to provide the evidence demonstrating the fair and reasonable nature of the agreement.

What is considered “fair and reasonable” is not easily specified. This factor does not require that both spouses end up with an equal amount of marital property or money. Rather, the “fair and reasonable” factor is an assessment of all circumstances surrounding the marital agreement. The judge balances various factors against one another and evaluates which way the scale tips, either being a fair and reasonable agreement and thereby enforceable, or towards an unjust, unreasonable agreement that is unenforceable.

The judge determines whether the agreement was fair and reasonable at the time of creation by looking at the big picture. This type of evaluation can involve consideration of the spouses’ motives, such as whether they entered into the agreement to financially protect themselves, or children from a prior marriage. Another important concept to consider is whether there is any disparity in relation to property division in the agreement. The context of the postnuptial agreement is to be highly scrutinized by the judge.

Next, the judge takes another look, analyzing whether the postnuptial agreement still remains fair and reasonable at the time of divorce. This analysis assesses what circumstances have changed since the postnuptial agreement was created, considering factors such as spousal parties’ current age, health, occupation and employability and other factors and whether it would be possible that one spouse would be unable to sufficiently support himself or herself if the postnuptial agreement was not enforced. If one party would in fact be unable to properly support himself or herself at the time, then the postnuptial agreement may be considered to not be fair and reasonable at the time of the divorce.

Postnuptial agreements can be an effective tool for spouses who want to determine what will happen to their marital property if they divorce. An agreement created outside the jubilance of an upcoming marriage, or amidst the turmoil of a pending divorce would likely yield best result. Nevertheless, it is important to keep in mind that if circumstances significantly change from the time in which the agreement was created and when the divorce takes place, it can run the risk of the agreement no longer being fair and reasonable.

*A fictitious couple and family.

Resources:

Grossman, Joanna. “The Enforceability of Postnuptial Agreements: Massachusetts Weighs In, Part One in a Two-Part Series of Columns on Postnuptial Agreements.” FindLaw. (2010). Available at: http://supreme.findlaw.com/legal-commentary/joanna-grossman-archive.html.

Maier, Lynn, Esq. “Why a Post-Nuptial Agreement Can Save Your Marriage.” HuffingtonPost. (December 2011). Available at: http://www.huffingotnpost.com/lynn-j-maier-esq/why-a-postnuptial-agreeme_b_997219.html.

Walckner, Stephanie. “Fair and Reasonable in Massachusetts Postnuptial Agreements.” Marital Mediation. (April 2011). Available at: http://www.maritalmediation.com/2011/04/fair-and-reasonable-in-massachusetts-postnuptial-agreements/.

*Amanda Driscoll graduated from Suffolk University in May 2013 with a major in public administration and a minor in business law. While at Suffolk University, Ms. Driscoll was in the Griffin Honor Society,  the Secretary of the Suffolk University Environmental Club and an Eco Ambassador of Suffolk University Sustainability. She currently attends Mass. College of Law in Andover, Massachusetts, where she expects to graduate with a juris doctor degree in 2018 and Suffolk University in public administration, where she expects to obtain her masters degree in public administration in 2017.  Ms. Driscoll received a CALI Award for the highest grade achievement in the study of Writing and Legal Research in June 2016.

The Volunteer Attorney Representing Children (ARC) in Massachusetts:

By Amanda Driscoll, Law Clerk*

Some of the most significant issues in Massachusetts Family and Probate Courts are those involving unemancipated children.  The court has jurisdiction over those children pursuant to Massachusetts General Laws, Chapter 208, Sections 19, 28, 28A, 29, 30, 31 and 31A.  In 2013, a program called Attorneys Representing Children (ARC) started in Massachusetts which an attorney voluntarily represents the child’s interest in a divorce case or other probate matter.

In determining the outcome of these cases, the court must consider what is in the best interest of the child.  Accordingly, a child’s preference is one piece that may be helpful to the court for this determination.  There is a wide variety of other resources available to the court in identifying the child’s desires and interests.

Sources of information provided by the child’s parents, teachers, or other third parties may be introduced as evidence at the trial or hearing to help the court make a decision that genuinely is in the child’s best interest.  In addition, a guardian ad litem, or “GAL” may be appointed to perform an investigation or evaluation of the child’s home and family, and render a report to the court, pursuant to Massachusetts General Laws, Chapter 215, Section 56A and Massachusetts General Laws, Chapter 208, Section 16.  The GAL’s report may also be introduced into evidence and the GAL may be cross-examined at the time of the trial or hearing.

Although these methods of gathering information are quite helpful to the court in making a decision that is in the best interest of the child, they also have some down sides.  For example, parents that are in the midst of divorce, modification, or removal proceedings might be too fixated on the litigation to have a clear understanding of the child’s interests. In turn, counsel for the parents are more likely to be focused on the position of their client, rather than those of the child. In addition, third parties who also have a close connection with the child, such as teachers or therapists, may not have discussed the topic with the child, and may feel uncomfortable getting involved.  Furthermore, one needs another Guardian Ad Litem on privilege if a child’s therapists may be called to testify to waive or assert the child’s privilege.  A therapist may also decline a court appearance for fear of damaging the therapeutic relationship he or she has with the child.

As a result of the costs of GAL appointments, several counties in Massachusetts have developed ARC programs in order to provide legal representation for children individually.   The ARC program does not pertain to court matters such as involving abuse or neglect where the Department of Children and Families (DCF) is involved. Some attorneys have volunteered to participate in the ARC program to help children.  The ARC attorney’s job is to act as the child’s voice in the court.  Similar pro bono programs are now currently in operation in Massachusetts in the Probate and Family Courts of Bristol, Middlesex, Norfolk, and Plymouth Counties.  Attorneys willing to volunteer their time for the ARC program are placed on a list of panel counsel, and are court assigned cases in which DCF is not involved, on an as-needed basis.  Based on the time commitment of this involvement and expenses incurred, counsel are not expected to take on more than one ARC case per year.  The appointment of an ARC attorney in representation of a child in divorce or probate matter enhances the potential of an early settlement. Alternatively, an ARC attorney will help the court  in advocating for the child, along with other sources provided, so the the judge hearing the case has enough information to make the best possible ruling for the case.

*Amanda Driscoll graduated from Suffolk University in May 2013 with a major in public administration and a minor in business law. While at Suffolk University, Ms. Driscoll was in the Griffin Honor Society,  the Secretary of the Suffolk University Environmental Club and an Eco Ambassador of Suffolk University Sustainability. She currently attends Mass. College of Law in Andover, Massachusetts, where she expects to graduate with a juris doctor degree in 2018 and Suffolk University in public administration, where she expects to obtain her masters degree in public administration in 2017.  Ms. Driscoll received a CALI Award for the highest grade achievement in the study of Writing and Legal Research in June 2016.

Nesting: The Modern Era Convenience for Divorce

By Amanda Driscoll, Law Clerk*

What is Nesting?

When it comes to divorce, nesting is a new trend that is on the rise nationwide. Nesting is the process by which the mother and father take turns being available in the home, while the children remain within the “nest,” or family home, consistently throughout the process. For instance, the father may have certain days or time intervals each day, while the mother occupies the other time interval, like a shift change in a sense. Nesting allows divorced parents to give children stability and reduce financial burden by providing themselves with the proper amount of time to wait before selling the family home or investments.

History

The idea and use of nesting is thought to have originated in 2000 in the United States, upon a Virginia court agreeing that the best solution for two young children involved in a family with two divorcing parents was for the children to remain within the family home. Generally, nesting arrangements were designed with the mother staying in the family home with the children during the school/work week, while the father would stay at the home on weekends. Since its origination, nesting has become increasingly popular within the States, even appearing on multiple US television TV series.

Currently, the concept of nesting has crossed over the Atlantic, with a growing number of British courts encouraging shared parenting, rather than one parent receiving sole custody. Generally speaking, courts would not ordinarily force a divorced court into nesting, otherwise referred to as “bird’s nesting,” but a groundbreaking Canadian case in 2003 proved to be quite an exception to the divorce settlement norm. In this case, the judge instructed the divorcing parents to stop treating their children like ‘frisbees,’ and enforced a mandated bird’s nest custody arrangement for the couple without such being requested by either party.

Are there any negatives in this process?

Despite the positive impact nesting has had by many couples who have tried it, parting ways while still keeping their children as their top priority, some therapists, may oppose this type of activity. They caution that the arrangement encroaches on the parents’ privacy during a time necessary to establish their own new lives and adapt to new routines. Another concern involves whether such close collaboration with the divorcing partner allows for closure and the ability to move on. Also, the nesting routine might confuse children, seeing their separated parents still so closely involved with one another. Finally, if the parents fight over money, and struggle with having to transport their belongings to and from the apartment, without a sense of belonging that either domicile is their own, it may be difficult for the children.

One method to help avoid such nesting tension is by setting strict ground rules regarding assigned chores and a particular time of day in which each partner is free to take a break.  According to many psychologists, one of the most effective methods is to establish a plan that involves limited direct contact, such as one parent that drops the children off at school, while the other parent is assigned to pick them up. There needs to be a clear-cut plan that can be followed consistently in order to end the nest, providing closure for both partners while maintaining the nesting arrangement until closure can be attained for both the parents and children alike. Nesting should never be used indefinitely.

Psychologists generally say that children can adapt without emotional harm from even the worst divorces, so long as the parents work together as a team. Moving houses, or going long periods of time without seeing one of the parents can be overcome by children, provided that conflict is not involved in the divorce arrangements. Tension, constant arguing, or situations where the parents don’t communicate has a detrimental effect on children.

Attorney Debra L. Smith of Watertown, Massachusetts suggests that parents should take the high road and treat their child’s other parent with respect and be civil towards that parent. The reason is that the other parent will be in the child’s life as they will see them at school and sporting events, graduations, weddings and even later in life by sharing time with their grandchildren. A long term plan that could be that a good therapist, counsel or mediator can work with the divorcing couple to create a solid parenting plan and spell out arrangements for parenting time, as well as joint parenting decisions.

One option that can potentially create a sense of neutrality for parents who agree to share custody of their children is deciding to keep their house, while also sharing a one-bedroom apartment in close proximity to the home, the cost of rent and ability to nest.  This can provide the parents with a feeling of escape, and relaxation, by leaving the home and taking the time to become a single parent.

Resources:

Sovich, Nina, When Parents Divorce, the Children Get the House, Wall Street Journal. (October 26, 2016). Available at: https://www.wsj.com/articles/when-parents-divorce-the-children-get-the-house-1477496914.

Bernstein, Elizabeth. The Child Focused Divorce. The Wall Street Journal. (September 6, 2011). Available at: https://www.wsj.com/articles/SB10001424053111904537404576552631228768332.

Kruk, Edward, “Bird’s Nest” Co-Parenting Arrangements: When Parents Rotate in and Out of the Family Home, Psychology Today. (July 16, 2013). Available at: https://www.psychologytoday.com/blog/co-parenting-after-divorce/201307/birds-nest-co-parenting-arrangements

Sanghani, Radhika, ‘Bird’s nest custody’: The smart new way to divorce, The Telegraph, (February 7, 2016).

*Amanda Driscoll graduated from Suffolk University in May 2013 with a major in public administration and a minor in business law. While at Suffolk University, Ms. Driscoll was in the Griffin Honor Society,  the Secretary of the Suffolk University Environmental Club and an Eco Ambassador of Suffolk University Sustainability. She currently attends Mass. College of Law in Andover, Massachusetts, where she expects to graduate with a juris doctor degree in 2018 and Suffolk University in public administration, where she expects to obtain her masters degree in public administration in 2017.  Ms. Driscoll received a CALI Award for the highest grade achievement in the study of Writing and Legal Research in June 2016.