Does marital mediation always result in a written agreement?
Some marital mediators believe that every marital mediation should result in a written agreement. Some mediators take the view that improvements in communication skills and in handling disputes are the most important result. This type of mediation is transformative mediation. These marital mediators might draft written agreements for their clients, but do not see them as a necessary result or component of the process. The clients often do not complete them, because the mediation causes their marriage to improve, and a written agreement is not needed.
What are postnuptial agreements?
Postnuptial (also called postmarital agreements and marital agreements) are written agreements between spouses made at a time when the spouses are married. These are different than “Separation Agreements” or “Divorce Agreements” which are made in contemplation of divorce and are used to define the terms of the divorce after it occurs. They are not prenuptial agreements, because the marriage has already taken place.
Postnuptial agreements range from agreements about day-to-day activities (such as who will do the dishes), to agreements about what will happen if a spouse inherits money, or about property that will be should be divided or transferred to a spouse. Because postnuptial agreements can vary the laws of marriage, they should be undertaken with great care. When embarking on a postnuptial agreement, it is important that the agreement be fair to both parties currently, and in the future if and when it goes into effect.
Are postnuptial agreements legally binding?
In many states twenty-five years ago, prenuptial (or premarital) agreements, i.e., those made prior to a marriage were not binding. Since then, most states have accepted the legality of prenuptial agreements, providing certain requirements are satisfied. The rules vary from state to state, but generally, a premarital agreement must entail a knowing waiver of marital rights, must be fair and reasonable (or at least not unconscionable), and not be coercive.
Law is being developed now about the validity and enforceability of postnuptial agreements. While most states now accept postnuptial agreements, there are variations from state to state as to what needs to be in one for it to be enforceable. Factors leading to enforceability would be a postnuptial agreement that is non-coercive, parties each had a separate reviewing attorney, and if a party is not secretly motivated to gain advantage to better the terms of a future and intended divorce. Equitable principals are important, and the terms of the postnuptial agreement should be fair and reasonable.
But even if the ultimate enforceability is not settled in your jurisdiction (or under the particular facts of your marriage and the agreement), a postnuptial agreement, if fair, can be upheld by the parties, and can give them relief in the matters they have decided to in the contract. This alone can make the marriage better, and permit it to continue and be ongoing.