boston.com Your Life your connection to The Boston Globe
John A. Fiske, a Cambridge lawyer, met last week with a couple who negotiated a postnuptial contract with his help. Such pacts aim to help save marriages by resolving financial conflicts.
John A. Fiske, a Cambridge lawyer, met last week with a couple who negotiated a postnuptial contract with his help. Such pacts aim to help save marriages by resolving financial conflicts. (Bill Greene/ Globe Staff)

Sealing a contract after the marriage

Couples spell out duties, finances

They enjoyed life as carefree newlyweds, with two paychecks and no children. But a decade later, they were quarreling spouses in a suburb of Boston; she was at home with two children, he traveled the world as a hard-charging executive. Through tears and tantrums, she and he found their marriage to be on the brink of collapse.

Their relationship rebounded after the two tried an unusual approach: Across a conference-room table, they worked out a contract.

They agreed to separate many of their finances and to delineate family obligations to reduce tension. The pact contained provisions if they divorced.

But it said: ''Our first and joint commitment is to make our marriage work."

Last week, the couple celebrated a 27th wedding anniversary.

''There are things we continue to work out and discuss," said the husband, 53, who asked that his name not be used to protect the family's privacy. ''But we're in this forever."

Weary of marriage counseling but loath to divorce, a small but growing number of couples are trying a drastic approach to keep relationships intact, say lawyers, mediators, and therapists.

They draft a contract known as a postnuptial agreement, which is similar to a prenuptial contract, except that it is negotiated after the wedding vows. The postnuptial accord spells out what happens if the couple's relationship goes downward, but its focus is on keeping the marriage together.

Typically, postnuptials call for spouses to create separate pools of assets and to define one's financial obligations to the other, minimizing what are the most stressful topics for sparring couples.

But these documents can also codify what is written on the kitchen bulletin board, such as who washes the dishes or who shovels the snow. It can also cover sensitive topics, such as the religion in which to raise the children. Clarifying these issues often helps couples who do not want to be part of a statistic: Almost half of all marriages end in divorce.

''It's a midcourse correction in their marriage," said John A. Fiske, a Cambridge lawyer and a mediator, who drafted the postnuptial contract for the couple, who have celebrated their 27th year of marriage. He said he writes about five postnuptial agreements a year. A decade ago, he did roughly two a year.

Therapists who work with couples say the process of drafting postnuptial agreements can help trigger sweeping behavioral changes that might keep couples together.

The process of writing it down in a legal format, and of separating finances, can change the power dynamics between a couple that no amount of therapy can do.

''It helps them take more individual responsibility," said Janet Wiseman, a family and divorce mediator in Lexington.

Couples do not have to be on the brink of divorce to seek postnuptial agreements.

One lawyer represented a woman in a second marriage who, after inheriting a large sum, wanted a postnuptial agreement to clarify what would happen if she divorced.

She wanted to make sure that those funds passed on to the children of her first marriage, not to her new husband.

One problem with postnuptials is the awkwardness of enforcing its provisions.

If a wife does not hand over property to her husband, as required by the agreement, his only recourse is to sue her. Of course, the ultimate recourse is to seek a divorce.

If that happens, the postnuptial would probably be viewed as a template for a future separation agreement or divorce settlement, lawyers say.

There are no statistics on how often postnuptial contracts are drafted; couples and lawyers are not required to file them in courthouses, and they often come to light only if the couple in question divorces.

But many lawyers and therapists say demand has increased in the past five years, as new trends in family law back up their validity and as more couples come to believe that marriages thrive best when spouses have no financial secrets.

Lawyers say these pacts are far more common among couples with sizable assets or complex financial holdings.

Gary Todd, a Boston lawyer who specializes in family law, said he wrote eight postnuptials this year, while a decade ago he did fewer than four a year. Several lawyers who handle divorces say that prenuptials remain the most common contract between spouses, with five prenuptials written for every one postnuptial. But since the mid-1990s, postnuptial agreements are on the rise.

''The topic of postnuptials is on the front burner now," said Mark Smith, a lawyer whose Boston firm has written about five postnuptials in two years. ''More and more people are talking about it."

Generations ago, judges did not recognize contracts between spouses. They were considered one legal entity that could not separate into competing financial and legal interests.

But across the country, spurred on by public interest in prenuptials, judges have started to accept the idea that spouses can sign contracts with each other.

This can happen as long as each spouse has his or her own lawyer, as long as both spouses fully disclose their assets and liabilities, and as long as they can come to an agreement without fraud or coercion.

In Massachusetts, judges left open the question of what constitutes a valid postnuptial contract.

In the most publicized case,involving a Pembroke couple, the Supreme Judicial Court did not say the postnuptial itself was faulty, but struck it down because the justices found that the wife had negotiated in bad faith.

In the 1991 case, judges found that the wife, Geraldine Fogg, had enticed her husband, Stanley, to sign a postnuptial, which gave her additional property, by saying she would try to improve their troubled marriage. But she filed for divorce shortly after the postnuptial accord was signed.

After the judges invalidated the contract, they added that they would ''leave to another day whether agreements made after the parties have been married, and not in anticipation of an immediate divorce, are valid." They also said that valid postnuptials, at least, must meet the same standards as prenuptials.

The ambiguous status of postnuptials is why some lawyers hesitate to draft them.

Sharyn Sooho, a Newton divorce lawyer, said judges take a hard look at whether one spouse, dreading divorce, is being unduly pressured to sign away property and other rights.

Still, she said, she is aware that many couples thrive after making the major adjustments required from most postnuptials. ''It opens up the dialogue," Sooho said.

As their marriage was deteriorating, the couple from the suburb west of Boston knew they were entering uncharted territory when they asked Fiske, a mediator, to help them stay married.

Something wasn't working in their marriage, but they knew they shared a deep love not just for their two children, but for each other. The husband recalled turning to Fiske and asking, ''Would a postnuptial contract work?"

His wife, now 49, said the postnuptial agreement drafted in 1998 ended up saving their marriage. Part of the agreement required her husband to put her name on specific property deeds and ensure that she had regular payments into private accounts for her.

Until then, she said, he controlled all the finances, and she worried about her financial situation if they divorced. She said the new transparency to their finances helped restore trust between them.

''It calmed me down," she said.

The agreement, which also required that each spouse consult the other on major decisions about the children, proved to be the blueprint to rehabilitate their marriage.

''There is no anticipation of divorce," the document read in part, ''because we have looked into the implications of divorce as thoroughly as humanly possible and rejected this course, choosing instead to expend our full energies on redefining and revitalizing our marriage."

Patricia Wen can be reached at wen@globe.com.

SEARCH THE ARCHIVES