Do Post-Nuptial Agreements Belong in Marital Mediation?

What Is Marital Mediation?

Marital mediation is a relatively new entry to the mediation field. In a sense it is neither “fish nor fowl.” Marital mediation is neither marital therapy nor couples therapy; it is not any kind of therapy. Mediation, known for its focus on communication and problem solving skills, offers couples, whose marriages are experiencing problems, a comparatively short term “fix.” Mediation proposes to focus on the here-and-now, to address problems expressed by the married couple that they, the participants, believe is damaging their relationship. Led by a skilled and neutral facilitator, mediation offers a brainstorming approach for the couple to consider ways to resurrect their marital relationship or perhaps ways to build a new and better union, sometimes with creation of a post-nuptial agreement. There should not be any presumption that the mediator will help the couple to uncover the underlying causes of the tensions of their relationship.

Therapy seeks to uncover and address root causes of dysfunction. Alternatively marital mediation is a surface kind of process; it deals with the couple’s reporting of issues, behaviors, beliefs and the like, that they, as marital partners, perceive as causes of their marital problems. And, then, the mediator, as the facilitator of the problem solving process, strives to engage the couples in exploring strategies designed to reconstruct their relationship built on a new platform, a platform that may include commitments to changes in individual behavior, to adjustments in roles assumed by each partner, to joint endeavors to new approaches, to interactions with relatives, children and others, and so grows the long list of conceivable problems raised or designed approaches to problem resolution.

In summary:

Marital mediation is a relatively short-term process entered into by couples that hope to save their marriage.

The couple may also be in marital therapy or may enter therapy after mediation or may choose to give their relationship a chance to survive on the basis of improvement from the mediation process or regrettably, decide to divorce.

What Is the End Product of Martial Mediation?

The end product of marital mediation may be a written agreement, a kind of contract, that the couple enters into specifying, in detail, the terms and even the contingencies, relating to their new “deal” for change. The contract may include returns to mediation for assessment of their progress or other forms of future analysis of success.

Can Marital Mediation Produce a Legally Binding Agreement?

In some marital mediations, the contract may take the shape of a post-nuptial agreement. Here the couple states, in writing, the actual terms that will govern each party in the event of a future divorce. The parties must provide full financial disclosure of his or her present and even anticipated assets/liabilities.  And, each party has the opportunity to secure independent legal counsel in order to be advised of individual legal rights as well as for an assessment as to whether the terms are fair and reasonable in light of existing law.

A post-nuptial contract, settling “all rights and obligations arising from a marital relationship,” received the blessing of the Supreme Judicial Court of Massachusetts in August 2010, and, as such, offers an option for couples wishing to stayed married, but concerned about what will happen in the event of divorce, a kind of double-edged approach to the marital mediation equation. Here the couple seeks to strengthen their marriage, but also to take the sting out of the uncertainty of a divorce action, by taking a proactive approach. Is this the right strategy for all couples? Of course, it is not. It is critical that the couple explore with the mediator the goodness of the fit of a post- nuptial contract for them as a couple.

Is Marital Mediation Similar to Divorce Mediation?

Marital mediation is a much more expansive process than is divorce mediation. It can take many shapes and does not have one designated ending. The couple is in charge of the depth of the problem solving. The mediator must have the expertise and skills to not only present possible options but also have the skills and knowledge to carry each option to its conclusion.

Lynne Halem

Dr. Lynne C. Halem is the director at the Centre for Mediation & Dispute Resolution in Wellesley, MA. Dr. Halem has worked in the mediation field since 1982. She is on the Family Dispute Service Panel of the American Arbitration Association and a past board member of the Divorce Center,… MORE