A Contract to Stay Married

Whenever a prospective client first enters my office, I tell the prospective client that s/he can spend money on a divorce and be sad and lonely once divorced.  Or the prospective client can spend money on a marital counselor instead and have a shot at happiness.

Many times, once people begin marital counseling, they realize they can be happy if they change the financial arrangement within their marriage.  I often hear clients saying they want to start living with separate bank accounts, or they only want to continue the marriage if it’s determined now how property will be divided if they divorce in the future.  Some people want to memorialize the new arrangements or negotiations in a contract called a postnuptial or marital agreement. 

Marital/postnuptial agreements, like prenuptial agreements, are tricky because they are not always enforceable.  The Massachusetts Supreme Judicial Court discusses their enforceability in Ansin v. Craven-Ansin.  In order to be enforced, the SJC requires that the marital agreement  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.” 

However, even if you meet those factors, the court may still choose to not enforce the marital agreement.  It’s worth paying an attorney to work on your marital agreement in order to increase the likelihood that the court will enforce it. 

Common Financial Statement Questions

The financial statement lists a number of sources of income and deductions that don’t apply to me.  Should I leave those blank?
No, the court requires each field to be completed.  If you do not have a particular source of income, deduction, or expense, enter “zero” instead of leaving the field blank.

How do I calculate my expenses?  They vary monthly.
You can approach the calculation a couple of ways.  You can take the average based on expenses for the last three months.  Or you can take the average over the last year.  Just be sure to be consistent.  If you take averages of the last three months for income, you should do the same for expenses.  You may want to talk to an attorney because it might be helpful to calculate figures one way or another based on your request for alimony and child support.

Nothing has changed on my financial statement since the last hearing.  Do I need to completely redo the financial statement for the upcoming hearing?
No, most courts will accept the prior financial statement if you re-sign the final page on the date of the upcoming hearing.  Be careful though—chances are a figure did change, such as your checking account balance or the balance of your 401k.

I want to explain something on the financial statement that is not clear.  Where do I do that?
You can footnote a field, and then enter footnotes on the bottom of the page.  Alternatively, you can include endnotes in an addendum.  Be sure the footnotes/endnotes are on the copy submitted to the court.

It’s easier for me to complete the financial statement by hand. 
The copy you submit to the court needs to be typed and on pink paper.  It sounds silly, but providing a pink, typed copy will flag to the court that you are a serous litigant who knows what you are doing. 

Why Can’t Your Mediator Be Your Lawyer?

In family law mediation, the mediator’s job is to facilitate resolution of the divorce.  In other words, the mediator will manage and coax a conversation in which custody, child support, property disposition, alimony, health insurance, and taxes are settled.  The mediator may reflect values, reframe issues, and ask pointed questions to reach settlement.

However, there are several things a divorce mediator cannot do because it would be a conflict of interest.  First, a mediator is not supposed to give either party legal counsel.  For example, the mediator cannot tell Wife that she should file a Motion to Compel because Husband has been non-compliant with temporary child support, nor can the mediator advise Husband to not move in with his new girlfriend because it will impact his rights to receive alimony.  It is a conflict of interest to give this type of guidance to one or both parties, while also mediating. 

Second, a mediator technically should not draft a Separation Agreement for the parties.  Drafting a legal document, such as the Separation Agreement, is part of legal representation.  If the mediator drafts it, who is she drafting it for?  One party?  The other?  She can’t draft it for both of them because that would be a conflict of interest.

You may find divorce mediators who are willing to smudge these lines, but be careful.  The court might not accept a Separation Agreement “mediated” in that manner.  To prevent trouble, hire an attorney in addition to your mediator.  Your attorney can answer your legal questions and draft the Separation Agreement for you.  That way, you don’t have to implicate your mediator in a conflict of interest.  And, as a bonus, the court is more likely to accept a Separation Agreement where both parties had counsel.  It might seem more expensive to hire a mediator and an attorney, but it saves you the cost of a Separation Agreement that breaks down before the court.   

What Will the Court Ask You at an Uncontested Hearing?

The majority of the divorce process is negotiating with your spouse to reach a divorce settlement.  By the time you’ve signed off on the Separation Agreement, you and your spouse may have been negotiating for months or years.  Signing the Separation Agreement, however, is not the last step.  You still need the court to approve your Separation Agreement at the uncontested hearing.  What questions can you expect at your uncontested hearing?  The judge will likely ask you the following:

1) What is your name and address?  Are you married?  What is the name of your spouse?  When were you married?  Did there come a time when your marriage suffered a breakdown?  Were there any minor children born to this marriage?  (The judge asks these questions to confirm the accuracy of the information on your complaint for divorce.)

2) Have you had an opportunity to read the Separation Agreement?  Do you believe it is fair and reasonable?

3) Have you had an opportunity to consult counsel?  If so, are you satisfied with your counsel’s ability to answer all of your questions?  If not, do you understand that you may be waiving certain rights under the law, such as the right to alimony and property disposition?  Do you understand that property disposition is final and cannot be modified?

4) Have you had the opportunity to review your spouse’s financial statement?  Do you believe it is truthful and accurate? Did you have the opportunity to request and review supporting documentation?

5) Were you of sound mind when you signed this Separation Agreement?  Were you under force or duress to sign this Separation Agreement?

If the judge reviews your Separation Agreement and financial statements and believes that a provision is unfair or unreasonable, such as a waiver of child support or alimony, the judge may send you and your spouse out in the hallway to modify that provision of the Separation Agreement.  To avoid this hassle, before you sign the Separation Agreement, ask your counsel if the judge is likely to find it fair and reasonable.