Many people equate seeking the services of a mediator with divorce and coming to an agreement about property rights and other interests after divorce. This is not always the case.
Sometimes a mediator helps a couple to reach a marital agreement in support of reconciliation.
This article discusses marital agreements between spouses who hope that they can resolve their conflicts and come to a marital agreement as a condition of reconciliation.
Rather than relying on words, promises, or oral agreements made during attempts to reconcile they work with the mediator to come to and put in writing an agreement that confirms the oral agreement that was made between spouses.
I often mediate for couples who are on the verge of divorce but are not convinced that the marriage should be ended.
Both parties still have some hope that if certain conditions are met, they can attempt reconciliation.
Making the agreement in writing and concrete can contribute to the protection of certain rights of the parties while they give their marriage another shot. An agreement between spouses can also delineate the time each is willing to commit to the reconciliation process.
Sometimes one spouse has separated or filed for divorce in response to the marital misconduct of the other spouse. Examples of marital misconduct that present often in this type of mediation setting include one spouse having an affair, financial dishonesty or infidelity, or a spouse who continues to negatively impact the family with the effects of untreated addiction.
Apart from marital misconduct, another situation where a marital agreement can be helpful is when the parties are contemplating a marital separation but intend to remain under the same roof for an indefinite period. In this type of case, the marital agreement may set forth contract property rights in the event the couple later decides to live apart or divorce. Marital agreements may also be used to help resolve financial disputes during a marriage.
In each of these examples where there is a need for a marital agreement, the marital agreement may actually prevent divorce or separation by creating guidelines or boundaries for each spouse to respect and follow.
Here, rather than focusing on the areas of disagreement, pain, and conflict, husbands and wives choose to focus on cooperation and agreement to secure mutual goals in order to build together a life that incorporates lessons learned from the past and a path of healing. Marital agreements also establish a household budget or create clear financial or behavioral boundaries in the marriage.
UPMAA defines a marital agreement as “an agreement between spouses who intend to remain married which affirms, modifies, or waives a marital right or obligation during the marriage or at separation, marital dissolution, death of one of the spouses, or the occurrence or nonoccurrence of any other event.”
A marital agreement to resolve conflict or chart the path forward in a marriage is different from a post-marital agreement which conclusively defines rights to property at death or divorce. The post-marital agreement is arrived at the incident to divorce and filed with the court together with a petition for a divorce decree.
Arizona courts recognize the rights of husbands and wives to enter into written agreements. While in Arizona there is no specific statute that authorizes or creates the rights of married couples to alter their property rights by agreement, the right to do so is supported by case law.
One caveat is that a marital agreement must be the result of a fair process.
While the right to enter into a marital agreement is supported by case law, it is very important to work with an experienced professional mediator or attorney in creating the agreement in order to ensure the validity of the agreement.
To be valid, a marital agreement, like a post-marital agreement, must have been executed voluntarily by spouses who have the capacity to contract and the agreement and process of reaching the agreement must be free of fraud, coercion, duress, or undue influence.
Mandating a fair process for a reconciliation agreement is different from mandating that a husband and wife must prove that the agreement they have made has ended in an objectively fair result. The result will be one that is subjectively fair for both spouses based on their personal interests. The process must be objectively fair in order to legally uphold an agreement that is subjectively fair to the parties. Spouses are free to negotiate the substantive terms without interference unless the agreement is somehow unconscionable at the execution of the agreement.
What is required in order to show spouses came to an agreement as a result of an objectively fair process?
Each party’s consent to the agreement must be voluntary and not the result of duress;
Each party must have access to independent legal representation, whether or not they choose to engage an attorney for independent review. Access to legal representation necessarily means both the money to hire a lawyer and a reasonable time to find one, get advice, and consider that advice.
Each party must receive financial disclosure (actual and constructive) or must fairly and effectively waive disclosure;
The agreement must explain in clear and plain language the marital rights or obligations being modified or waived by the agreement. The plain language is especially important where a party has waived counsel.
Before signing the agreement, both parties must have received adequate financial disclosure.
Because parties to an ongoing marriage occupy a position of trust, they must exercise a high degree of candor. The duty of full disclosure includes the duty to disclose a party’s motivation for wanting the agreement. A misrepresentation as to the party’s objective in seeking an agreement may undermine its validity. However, when a suit for divorce is pending and the purpose is to effect reconciliation, a spouse’s willingness to attempt reconciliation is sufficient consideration
Mediated agreements have negative connotations in the minds of many. In fact, a marital agreement can help to strengthen a relationship in the midst of stress.
Creating a marital agreement can actually prevent divorce or separation by creating guidelines and boundaries to enable the couple to have the hope and protection to chart a new course forward.
An experienced mediator, who is both knowledgeable about Arizona family law and an experienced professional trained in conflict resolution and family systems, can help parties to make informed decisions in an amiable, non-adversarial environment.
By creating the agreement in mediation, parties avoid an adversarial and expensive process involving attorneys communicating back and forth rather than partners talking to each other.