Massachusetts Supreme Judicial Court permits postnuptial agreements in Ansin v. Craven-Ansin

On July 16, 2010, the Massachusetts SJC ruled that postnuptial agreements were not per se unenforceable as against public policy.  In the much-awaited ruling in  Ansin v. Craven-Ansin, (SJC-10548 July 16, 2010), the unaminous court held that if the spouses later divorce,  the agreement must be carefully scrutized, and provided a list of factors that would indicate a particular postnuptial agreement would be enforced or not.     For link to case, http://www.sociallaw.com/slip.htm?cid=19996&sid=120

Among the standards are that there was opportunity to obtain separate legal counsel, there was no fraud or coercion in inducing the agreement, full disclosure is made, there is a knowing waiver of rights to a judicial equitable division of marital assets and other martial rights in the event of a divorce.

And most importantly, the Court held that a postnuptial agreement must be “fair and reasonable at the time of the execution and at the time of divorce”.  This means that the postnuptial agreement must be more like a separation agreement (one made at the time of divorce) than a prenuptial agreement (one made before the marriage).  An earlier case, DeMatteo v. DeMatteo, 436 Mass. 18 (2002),  had provided a lesser standard to prenuptial agreements than separation agreements, stating that in order to be enforceable, prenuptial agreements they must not be “unconscionable” and must not strip a spouse of viritually of  of his or her marital rights.   As another protection to the contracting spouse against whom the contract is being enforced, it is the spouse seeking enforcement that has the burden to satisfy the court as to all these critia.

Ansin v. Craven-Ansin is the first Massachusetts case addressing postnuptial agreements since Fogg v. Fogg, 409 Mass. 531 (1991).  In Fogg, parties entered into a postnuptial agreement which required the Husband to transfer valuable properties to the Wife.  Shortly thereafter, the Wife filed for divorce.  The Court held that the Wife had not entered the agreement in good faith, and in famous footnote 2 “left for another day” the question as to whether marital agreements were valid.

July 16, 2010 was that “other day”, and SJC provided cogent, protected and reasonable standards which will assist spouses in drafting the agreements that will protect and promote their marriages.

In our marital mediation practices, we find couples who want to preserve their marriages, but need our help. Too often struggling spouses think that divorce is their only choice.  A carefully conceived written postnuptial agreement addressing a certain problem that is causing the marriage to derail is often exactly what a couple needs to eliminate the conflict that is tearing them apart.  In our work, we have seen many marriages begin to flourish again after a postnuptial agreement is carefully conceived and signed by the spouses.

To see the oral argument on April 7, 2010 by counsel for the spouses in the Ansin v. Craven-Ansin case in front of the Supreme Judicial Court, click link here.  http://www.suffolk.edu/sjc/archive/2010/SJC_10548.html

Laurie Israel teaches Marital Mediation in Helena, Montana

The Montana Mediation Association (MtMA) invited Laurie Israel to teach a Marital Mediation workshop on April 29 and April 30, 2011.  She  presented an introduction on Friday, April 29, and an all-day workshop in Marital Mediation on April 30, 2011.  She had never been to Montana, and had a wonderful trip, meeting and interacting with Montana mediators interested in learning how to help marriages improve and flourish by means of marriage mediation.

Pacemakers Can Preempt Your Living Will Directives

An article appeared in The New York Times Magazine on June 20, 2010, entitled “What Broke My Father’s Heart” by Katy Butler.  http://www.nytimes.com/2010/06/20/magazine/20pacemaker-t.html?_r=1&pagewanted=1

It chronicles the life and death of her father, a retired college professor who had a pacemaker installed shortly after dementia set in.  The pacemaker’s battery was expected to last ten years.  Both her parents had signed living wills, and in fact and were adamantly opposed to their lives extending beyond usefulness and capacity to enjoy living.  They did not wish to be a burden to each other or their children.  Butler’s memoir attracted 442 reader comments http://community.nytimes.com/comments/www.nytimes.com/2010/06/20/magazine/20pacemaker-t.html and five letters reacting to the article were printed in the July 4, 2010 issue of The New York Times Magazine http://www.nytimes.com/2010/07/04/magazine/04Letters-t-002.html.

A stroke at age 79 disabled Butler’s father, Jeffrey. Several years later, after dementia had progressed a surgeon refused to operate on a painful hernia without installing a pacemaker.  Butler’s mother was anxious to relieve her husband’s pain, exhausted with care giving.  In deference to the doctors, she gave her consent to the implant. The author’s heart stopped when she later learned about her mother’s decision.  This medical decision took a minute, but resulted in devastating consequences for her father and the family that lasted many more years. 

What the doctor did not point out was that the pacemaker could permit Butler’s father to live in a mute and dependent state for another 10 years.  The option of using a temporary external pacemaker was not brought up or discussed.  The temporary external pacemaker could have been disconnected after the surgery.

Medicare would have paid the doctor $54 for a (long) office visit to discuss the temporary external pacemaker.  The surgeon earned $461 for the implant procedure, and the hospital a flat fee of about $12,000, of which almost half went to the maker of the device. The hernia was fixed.  In-home care for the rest of Jeffrey’s life cost tens of thousands of dollars.  This is how our country’s medical cost and medical insurance problem grows. 

Several years later, with her father still alive and in a demented state, Butler learned that pacemakers could be deactivated without surgery.  Her father’s heart would return to its previous slow rhythm, and he would eventually die, perhaps in his sleep.  Butler’s mother asked the family physician to deactivate the pacemaker.  He refused. 

Butler and her mother learned that her mother had the legal right to ask for the withdrawal of any treatment under her husband’s health care proxy.  The pacemaker was, in theory, a form of medical treatment.  But her husband’s health care proxy requested no life support if he was comatose or dying, but said nothing about dementia, and did not define a pacemaker as life support.  They learned that (as of that time) no cardiology association had given its members clear guidance on when, or whether, deactivating pacemakers was ethical.  No physician or hospital would help them. 

Two years later (nine years after the onset of his dementia), Butler’s father finally died in a hospital, of pneumonia. His pacemaker continued to work. Butler’s mother died a short time later..  She had declined open-heart surgery after the surgeon said he would refuse to honor her do-not-resuscitate order. “It would not be fair to his team,” the doctor said.

Since her father’s death, the Heart Rhythm Society and the American Heart Association have issued guidelines saying that patients or their legal surrogates have the moral and legal right to request the withdrawal of any medical treatment, including an implanted cardiac device.  In addition, it says that deactivating a pacemaker is neither euthanasia nor assisted suicide, and that a doctor could not be compelled to do so in violation of his moral values. In such cases, it continues, doctors “cannot abandon the patient but should involve a colleague who is willing to carry out the procedure.”  This guideline came too late for Butler and her family. 

You can benefit from the sad experience of Kathy Butler’s family during the last year of her father’s life and her generosity in sharing it with us. When you are executing a living will or medical directive, read the language that defines medical or mental triggers and removal of possible treatments very carefully.  Make sure that life support can be terminated if you suffer from dementia, not only if you are comatose or dying.  Make sure the directive permits the tuning off or removal of a pacemaker.  

© Laurie Israel. 2010.  All rights reserved.