Laurie Israel’s article on Prenups was published in The Huffington Post in 2 parts on August 31 and September 2, 2011 and on www.mediate.com on October, 2011.   To read the article, click here.

 A husband and wife, let’s call them John and Joan, have 2 children.  They have had middle-income earnings and saved for their retirement.   They now live in the (big) house where they raised their children.  Their income comes from social security, and IRA, and a small amount of income from a securities account.  They are 85 and 86 years old.  

During the past few years, they have started to progressively decline mentally and physically.  This is no surprise, since they are both older than average life expectancy.  (Most people over 85 have some sort of dementia).  John and Joan meant to have estate-planning documents (wills, health care proxies, powers of attorneys, etc.) but they never got around to it. 

John and Joan cannot take care of themselves in the house.  They are barely able to pay their bills (although they have enough money to do so, and are confused about what they have and what they can afford.  They have trouble climbing the stairs.  They are both still driving (small distances, slowly), but clearly are a threat to themselves and others on the road.  (Their refusal to stop driving is a symptom of their dementia.) 

John and Joan are only able to stay in their house because of the assistance of their daughter and her husband, who are driving 480 miles every week, and taking turns staying with the parents.  They are leaving their children (young adults who live with them) at home with only one parent at a time.  The daughter and her husband are at the end of their rope.  

John and Joan want to stay in their home on some days, and on others, they want to move to an assisted living facility.  When a lawyer came with power of attorney and health care proxy papers, they decided they did not want to name anyone.   With proper organization, they could hire home health care workers during the day, and continue to stay in their home for a while.  The help they need to stay in their home wouldn’t cost very much.  

The parents are getting very close to the point where, if they do not voluntarily accept help from their children, things will spiral down, and the parents will be in danger.   Then the children will need to ask for an involuntary guardianship/conservatorship.  The children do not want to do this, because they love their parents, and know their parents will hate them for it.  It’s not a good way to end a family history. 

So, if you are in your sixties, seventies, eighties (or older), do your planning now.  See the lawyer of your choice.  Try to plan for a smooth transition between you and the ones you trust.  Make it easy for your loved ones.  Otherwise, you will sadly be leaving them as a burden, which I’m sure you don’t want to do. 

© Laurie Israel.  2011.

Here are some of the features of collaborative divorce:

Face-to-face meetings.  The litigation process is inefficient because the clients and their attorneys are not resolving the divorce directly, through direct communications, but through attorneys.  This is also a problem in non-litigated negotiated divorces. Because there is no face-to-face contact, hurtful and aggressive positions tend to be interchanged by the attorneys and the spouses.

In collaborative divorce, the parties engage in face-to-face sessions with their two collaborative attorneys.  Issues can be dealt with directly.  Miscommunications and misunderstandings can be cleared up or avoided altogether. Spouses tend to be more conciliatory and gentle to one another in this setting, leading to less extreme positioning.  In a sense, the collaborative process is the last act of the marriage, unlike litigation, which is at its essence, an act of war.

Client control of process.  As divorce attorneys, we partner with our clients.  Our clients should be in control and make the decisions that they can live with.  They are the ones who know the history of their marriage, their day-to-day needs and concerns as parents and as individuals.  We, as attorneys, are there to assist and support our clients.  The more we understand their concerns, the better we can help them.  Our skills, experience and legal knowledge benefit our clients.

What does “the law” have to do with it?  Part of what we do is help our clients manage their expectations by providing sound legal knowledge, helping the clients to be realistic in their desires for the terms of divorce.  Divorcing couples need to deal with multiple issues relating to finances and children.  We analyze the facts of their divorce through the filter of the law pertaining to divorce applicable in our state.  This way the client can understand the range of settlement on the various practical issues that the couple needs to resolve.  Issues analyzed may include future inheritance, the amount and duration of support, and whether the law would require an at-home spouse to enter the job market.

This all assumes that the law is worthy of application.  It is a living body of the best ideas of the most competent professionals dealing with the practical issues facing our divorcing clients.  These ideas and rulings are formulated in practicality and a deep understanding of the human condition. In most states, as in ours, divorce law is considered an “equitable” legal system, based on treating the parties fairly and justly. 

I am a lawyer and have great respect for written court decisions, as well as the skills of the probate and family judges in Massachusetts as they make decisions (often unpublished) in the cases before them.  These judges are high-level experts in this area and are worthy of respect.  For all the above reasons, I believe wholeheartedly in the appropriateness and suitability of the law.

Collaborative attorney as advocate.  There is very often a range of results.  When applying the law to the facts of an issue in a divorce, we attorneys seek to help our clients take a reasoned view on any issue, so that our clients feel supported and educated at the same time.  This helps parties to avoid taking extreme positions.  Extreme positions can derail collaboration, or negotiation, and cause the divorce spin into litigation. 

At the same time, collaborative divorce includes lawyer advocacy for the respective clients.  We meet with and speak with our clients off-line (not in the collaborative meetings).  They can truthfully express all the thoughts and wishes for their case that may not be appropriate to express in the group collaborative practice meetings.  In addition, in the separate meetings with the client, the lawyer can provide legal information that may support (or detract) the client’s position.  This helps orient the client as to what is possible.  The collaborative group meetings work best if words expressing advocacy (by the clients, but especially by the attorneys) are limited.[1]  In a collaborative case, because negative interactions and aggressive positioning are highly minimized, the spouses tend to be more generous to each other in offering terms of settlement.

With this as the background, a Neutral Process Coach can make the collaborative divorce case even better.

What is a Neutral Process Coach?  The Neutral Process Coach (NPC) is, most importantly as the term implies, a neutral.  He or she does not take sides and does not advocate for either of the spouses or for any result. 

The NPC is concerned with the process of collaborative divorce – to make sure the process works well.  The NPC does not coach either of the spouses or the attorneys, but facilitates effective discussions.  In that way the NPC is a coach or facilitator for the entire process. 

The NPC makes verbal observations of communication dynamics in real time.  The NPC identifies communication problems and issues on the part of the divorcing couple.  The NPC also calls on the attorneys when the attorneys are acting too much like advocates or litigators, thus detrimentally affecting the collaborative process.

Why attorneys cannot do the job of the NPC. When the communications become unproductive, the NCP can step in to offer a more productive mode of communication.  There are patterns and dynamics of a marriage (conflict, emotional) that come into play in the collaborative group meetings.  It is much more effective for the NCP to deal with these issues than the attorneys, because the attorneys are advocates for their clients and not neutrals.  It is very appropriate for the NPC to identify and address these dynamics.  He or she is a neutral and not an advocate for either of the spouses.  The NPC is on the side of the collaborative process and helping the clients transition through the divorce.  

Who can serve as a Neutral Process Coach? An NPC is generally (but not always) a licensed mental health professional.  However, the NPC can also be a trained collaborative practitioner who is not a mental health professional, such as a businessperson, a coach, or a mediator.  The NPC must be formally trained in collaborative practice and should be an active member (either full or associate) in the local collaborative practice association.  In addition, the NPC should have other training in conflict resolution, including mediation training, advanced mediation training, and advanced collaborative practice training.

Who chooses the Neutral Process Coach?  Generally, the two collaborative attorneys choose the NPC based on their experience in other cases, the needs and personalities of their clients, the location of the meetings and the skill of that particular NPC. 

Does the Neutral Process Coach need to be at every meeting?  Yes.  You never know when something will come up that needs to be addressed by the NPC.  If he or she is not there, the process could derail.  The NPC should be present at all times, especially at the first meeting.

Sometimes a NPC is mostly silent, only entering the discussion at certain points.  However, those points can be very important ones. The participation of the NPC at these times could be crucial to success or failure of the collaborative process. 

The NCP is the only neutral in the room.  The most important value the Neutral Process Coach has in the collaborative process is that he or she is the only neutral in the room.  They provide important ballast to the meetings, balancing the conflicts between our clients and how to resolve them.  They also help reign in the attorneys from acting like attorneys.  (We are highly trained to argue and to advocate for our clients and have to learn other skills in order to be effective collaborative lawyers.) 

Having a neutral person in the room at all times should not be underestimated.  It is a breath of fresh air.  When things get tough, all eyes look towards the NPC, literally and figuratively.  When that happens, if he or she has not already sprung into action, the NPC will assist by addressing what is happening to the process that is making it go awry.

The NPC can identify when the discussion is going off base, either because the attorneys are acting like attorneys, or the clients are reliving their conflicts.  With a few words, the NPC can right the discussion.  Richard Wolman, a Boston-based NPC, likens his role to that of a river boat captain.  When the water is rough and we reach rapids, he sticks paddle in the water and gets us going in the right direction. 

What about the clients seeing the Neutral Practice Coach outside of the collaborative group meetings?  We have found it useful for the NPC to be available as a resource to the divorcing couple in between collaborative meetings.  Sometimes the couple meets with the NPC together, and sometimes they each might meet with the NPC separately.  When the NPC meets with the spouses separately, it can have highly beneficial effect, as it gives each of the parties an opportunity to speak freely without the other spouse present.    It is similar to “caucusing” in mediation. The input obtained in these separate meetings with the NPC helps the NPC do his or her job better. 

Having been present for all group meetings, the  NPC doesn’t have to be brought up-to-date and already knows the clients and has viewed their interactions first hand.  He or she is learning the details of the divorce and the agreements that are being discussed.  He or she can be a valuable resource for the divorcing clients in between meetings.  This is been extremely useful to many of the couples in collaborative cases I have been engaged in.

What about the cost.  The NPC adds an initial cost to the divorce “package” based on the NPC’s hourly charges.  However, the value added by the NPC is great.  I believe that adding the NPC generally reduces the number of group meetings required to conclude the collaborative divorce. In addition, lawyer time between meetings is reduced by the lessening of unnecessary conflict and positioning. The NPC also adds to the quality of the process and the quality of the agreement.  This makes the couple’s post-divorce relationship better.  Finally, collaborative practitioners believe that the presence of the NPC improves the chances that the collaborative process will result in agreement and not spin out into litigation.  So, on the whole, we believe having a NPC does not change the overall cost of a collaborative divorce and may, in fact, reduce it. 

Are there any downsides?  The NPC is a trained neutral.  However, the NPC is not an expert in divorce law.  As a result, the NPC may say something in a group meeting that shows that the NPC assumes that a certain result must apply (due to his or her incorrect or imprecise legal conclusion).  This may arise in issues pertaining to spousal support, a very hot issue in divorces. 

In the background, the two attorneys might be fully aware that there is a range of results the alimony law provides.  The two attorneys might be in disagreement as to how the law of alimony applies to this case.  The attorneys also may have differing points of view as advocates for their clients.  And the clients’ views might be in opposition, not having reached resolution on this issue.

An NPC may come into the group discussion with a view of the law of spousal support and how it would be applied in the case inadvertently imbedded in his or her words.  This view might appear to take a position on what is being contested in the collaborative process.  What results is that the NPC no longer seems neutral to one of the parties, thus impairing his or her usefulness.

When this happens, it is important that the attorneys (especially the one whose client’s view was validated by the remark) immediately remedy the NPC’s presumption at the group meeting in real time (gently and mildly), so that the NPC can understand, be aware of it, and regain his or her neutrality.

Everyone makes innocent mistakes once in a while – even collaborative lawyers.  If mistakes can be immediately identified and corrected and apologies forthcoming, the collaborative process can move on unimpaired.  We are not perfect collaborative practitioners or NPCs.  We can only be “good enough” collaborative practitioners and NPCs. [2]

Conclusion.  Neutral Process Coaches add value in collaborative divorces by ensuring that the communications in group meetings are not derailed by emotional and position-based dynamics on the part of the clients and the attorneys.  The NPC can help the clients address their concerns better and can be the neutral element that the spouses and their attorneys can look to at difficult moments during the process.

© Laurie Israel.  2011

[2] For a more detailed explanation of what Neutral Process Coaches do, visit Mary Jane Harmless’ informative post at http://neutralcoachincollaborativepractice.blogspot.com/  For the concept of the “good enough” collaborative lawyer, see Donald W. Winnicott’s concept of the “good enough mother” http://en.wikipedia.org/wiki/Donald_Winnicott.  See also therapist blog assessing the effectiveness of Dr. Melfi, Tony Soprano’s psychoanalytic psychotherapist, in “The Sopranos” as “a good enough therapist”  http://www.agpa.org/pubs/GC_0103_sopranos.html.

This past week, a colleague in the collaborative practice community, Chris Chen, a CDFA (Certified Divorce Financial Analyst) in Waltham, Massachusetts, told me about a company offering divorce insurance.  As someone involved in the business of both divorce and marital mediation (www.maritalmediation.com) I was intrigued.  I couldn’t resist taking a look at the company’s website, www.wedlockdivorceinsurance.com.  Here’s what I found:

WedLock Divorce Insurance^SM  is an insurance product marketed by SafeGuard Marketing Management, Inc., a division of Safeguard Guaranty Operations, Inc., which itself is a wholly owned subsidiary of SafeGuard Guaranty Corporation.  http://www.wedlockdivorceinsurance.com/About_us.aspx . 

The company, a North Carolina-based start-up, was formed by John Logan, a former victim of divorce.  Logan’s own personal experience with divorce proceedings served as the catalyst for developing this new product.

    Offering the insight that most divorces “don’t happen overnight”, Logan’s aim is to give people “a realistic and affordable way” to protect their net worth in case of divorce.  The divorce insurance basically provides coverage based on the number of “units” purchased and is payable after a 48-month waiting period.  This is essentially a “pre-existing condition” provision, the pre-existing condition being that your marriage is on the rocks, and you and your spouse hate each other.  (The waiting period can be reduced to 36 months by purchasing an “Accelerated Maturity Rider”). 

In order to get paid after the divorce, all you need to do is send a copy of your court decree to “Claims Direct Access” in Sandy, Utah. You can use the money for anything – even a post-divorce vacation with future spouse #2. However, it is unclear whether the divorce insurance proceeds might have to be shared as “marital property” with the ex-spouse, especially if earnings during the marriage paid for it.

 The parents of a spouse can buy a WedLock policy for their child.   What a thoughtful wedding gift that might be, although it may cripple a good in-law relationship. 

You can apply and pay for the policy online, and you won’t even have to take the “Divorce Probability Calculator” test on the site to qualify for coverage.   (More about that below.) 

The coverage consists of “Units” in the amount of $1,250 each, with an automatic increase of $250 per unit per year, a very nice feature.  Each unit costs $15.99 per month.  The sample contract on the firm’s website shows that for 15 units of coverage (payout of $18,750), the cost to you is slightly under $240 per month.   (“Hey, honey, marry me, but I’m spending $240 a month on this little insurance policy.  I hope you don’t mind!”)  

The maximum policy is 200 Units ($250,000 of coverage) and would cost about $3,200 per month.    Due to the cost, the insurance is probably mainly used to pay legal costs and not to replace assets taken by the rapacious ex-spouse in the divorce proceeding.  In fact, 10 or 15 units of coverage might nicely pay for a Collaborative Divorce, which is a very nice way to go if you’re getting a divorce.   To learn more about Collaborative Divorce, visit www.massclc.org

According to the website, WedLock policies are underwritten by a number of insurance companies, depending on where you live.  These are the so-called excess & surplus insurance lines which provide unusual insurance.  Reasons for this include insurance offered by new entity, a new kind of coverage, or one with an inadequate loss history or unusual risk.  E&S policies are not written by standard, licensed insurance carriers subject to state regulations.  

According to the video on the WedLock site, its insurance is not available in North Carolina, Kentucky, Oregon, or Pennsylvania.   By the way, in case you’re interested and would like to make extra money,  you can have the “ability to earn unlimited income through” by selling WedLock Divorce Insurance through SafeGuard’s  Partner Affiliate Program. 

I loved the website.  It contains wonderful information about divorce: its causes, factors, and statistics, all nicely researched.  http://www.wedlockdivorceinsurance.com/(S(sgewocwgy4pt34dtbiepevft))/Learn_more.aspx

 There is a divorce cost calculator, which helps you estimate how much your divorce hair cut will cost. http://www.wedlockdivorceinsurance.com/div_costs.html

The site is actually kind of upbeat and not depressing at all, especially if you think you are far from divorce.   I loved taking the “Divorce Probability Calculator” which tells you how risky your marriage is.  This happens immediately online.  You only have to give the company your name and email address in order to take the test and get your results.  After you take the test, WedLock electronically delivers a very nice report which explains the results.

The Divorce Probability Calculator relies on the 20 factors that research has shown are significant in the success or failure of a marriage.  These include key elements such as educational level, age at marriage, cohabitation before the marriage, whether it is a second (or third) marriage, the existence of children from a previous marriage, and unemployment of a spouse.

I put the factors that are present in many of my married friends into the “Divorce Probability Calculator”:  casual drinking, religion “not important”, having cohabited during marriage, and “regularly arguing” with your spouse.  The result was not good – a score of 92.  That hypothetical person would have a “Very Strong Probability” of divorce.   The result noted, “The news is not good.” But on a more encouraging note, it posed the question, “Does that mean you should never get married because you’re almost guaranteed to get divorced?  Certainly Not!  You may end up happily married forever after… but statistically, the odds are against you”.  

Then I adjusted the factors, thinking that maybe my friends didn’t “regularly” argue, but “occasionally” argued.  I hoped this would greatly improve the results. 

Unfortunately for my friends, the score went down only to 72.   They are at risk of losing their marriages, their homes, and in general, getting a divorce “hair cut”.  If they are marital mediators who help people improve their marriages (www.maritalmediation.com), this might be somewhat professionally embarrassing for them, too.  Many of my friends had previously thought their marriages were strong, and loved their spouses.  Now it has become my duty to warn them and inform them otherwise. 

 When I put “rarely argue” into the factors, the score got better – a 63.  But I thought the couples who rarely argue are the ones who – surprisingly to all their friends and family – end up in divorce court.

Then I began to wonder whether 92 was really a bad score, or if the results continued beyond 100.  I put in some additional unfavorable factors to test my hypothesis.   In addition to “regularly argue”, I added high school (not college) education, the existence of step-children in the marriage, and unemployment.  At that point the result was 150 points.  It was a still “Very Strong Probability” of divorce (the same as when the score was 92), but I was given this advice: 

 “Does [this] mean you should never get married because you’re almost guaranteed to get a divorce?  Certainly not!  In your case, we very STRONGLY [emphasis in the original] recommend that you adjust your budget to ensure that you can cover yourself against the unexpected.  In any event, we wish you the best of luck!” 

For all of you who take the “Divorce Probability Calculator” on WedLock’s site, I wish you the best of luck, too.  Based on the results, you might seriously consider buying WedLock insurance.

 © Laurie Israel 2011.

Everyone’s heard about divorce mediation, and maybe you have a friend or family member who has used it for his or her divorce.  A new field of mediation, marital mediation, is now emerging.  In marital mediation, a mediator helps a couple who wants to stay married resolve their conflicts.  It is an alternative to marital counseling, and sometimes it works when marital counseling does not. 

In mediation, a neutral person (often a lawyer, sometimes another professional) leads the disputing parties through decision-making by facilitating their discussions.  A very important part of mediation is to help people actually express their needs, rather than their positions.  Often, they find out that their needs are compatible, and they were just taking adverse positions, which resulted in an apparent (but not a real) conflict.  

In Massachusetts, there is a 200-plus member organization of family mediators called the Massachusetts Council on Family Mediation.  www.mcfm.org.  There is a trove of useful information on their website describing the different kinds of mediation available.  Some of these types might be of special interest to elders:  

Are you having difficulty discussing your estate plan with your grown children?  A neutral mediator can lead that discussion and help you and your children come to clarity.

Are you and your children having conflict over your plans for the future?  A mediator is trained to level the playing field, so that your feelings and aims will be heard by your children. 

Is there a family business that you would like to transfer to the next generation but it is very complicated, and you wish to achieve your goals?  Mediators can help lead that discussion and get and help you evaluate the professional help that might be needed in putting the plan into effect. 

Are you having a dispute with someone where you reside?  Use of a neutral mediator to lead that discussion might be very helpful. 

Are you having marital problems?  Marital mediation is a very useful and productive way to address disputes, especially in “mature” (long) marriages. 

Are you getting married and feel you need to have a prenuptial agreement?  Formulating a prenuptial agreement with your intended spouse through mediation is a wonderful way to do this.

Do you want to explore having a postnuptial agreement?  These agreements made between you and your spouse after your marriage to try to “fix” something that is of concern to both of you.  This can be handled very well in mediation sessions.  

Do you or someone you know have a dispute regarding the probate of an estate?  Family conflict can sometimes be addressed and eliminated (or lessened) in mediation.  

All these types of issues can respond quite well to the mediation process.  So if you have an issue or conflict that is not going away, you might want to give mediation a try. 

© 2011 Laurie Israel.

Trial lawyers do settle cases.  However, when litigation unfolds, opportunity for early settlements and most cost-effective settlements are usually lost.  Litigation attorneys need to show strength, good competitive position, and willingness to fight.  Offers and counteroffers are generally extreme.  Parties are left only with the option to fight.  The situation becomes polarizing.  Serious settlement discussions are compromised.  Much time and expense is devoted to trial preparation. 

 There is a way to help this situation.  A party who is represented by a litigator may hire “Settlement Counsel,” even from another law firm, to work on settlement of the case.  This is a lawyer experienced in dispute resolution (collaborative law, mediation), who is trained to work with parties and their counsels to see what the problem is preventing settlement and work on resolving that conflict.

 Often the litigation is ongoing while settlement counsel works.  It is important that enough facts have been developed so that the Settlement Counsel can settle based on relevant facts.  In Massachusetts, in most case, the mandatory self-disclosure under Rule 410 satisfies the fact-finding with need of little else.  Parties and their litigation counsel can cooperate in obtaining what else might be needed.

 Sometimes the parties agree to pause the litigation while the areas and issues of conflict are resolved.   Either way works.  In fact, the Settlement Counsel can help reduce the cost of litigation by narrowing the issues and areas of discovery.  Settlement Counsel can be updated on the facts and issues of the case very efficiently by the litigator who has been involved from the beginning.   Also, the “change of horses” sometimes provides a breath of fresh air and a “face saving” way to settle the case.

 It is important that the time frame for settlement by Settlement Counsel is a short one.  If settlement cannot be accomplished quickly, then litigation counsel should vigorously continue his or her work. 

Since a party still has litigation counsel on the side, that party is not transmitting lack of resolve by hiring settlement counsel.  The other side knows that if settlement is not achieved, litigation counsel will focus on a different mission – winning at trial. 

 If your case is stuck in litigation, or if you want to lighten the mood of the case, think about adding a Settlement Counsel to the mix.

©2010 Laurie Israel.  All rights reserved.

Many patients are now living longer with incurable diseases (such as cancer) so that it is difficult for people to accept the information from their doctors that no further options are available.  (It is also difficult for doctors to admit that they are at the end of their ability to help a patient.)  What results is a trend to pursue a cure, even though it often destroys the possibility of good quality last days, surrounded by loved ones, in complete physical comfort at end of life. 

Studies show that less aggressive end-of-life care can actually result in living a few months longer and with less depression.  But in order to have that, one must give up hope for a cure.  I have never been in that situation and don’t know whether I would opt for aggressive treatment, or if I would choose palliative care. It is a very weighty decision. 

When making end-of-life decisions, you (or your families) need to be informed of all of the medical and palliative options.  Younger terminally ill patients may opt for more aggressive treatment, especially those with young children.  But most terminally ill patients choose comfort care after receiving realistic information about their change of survival and how difficult and painful future treatment is likely to be. 

It is good to have end-of-life conversations with your family and significant other well before the need for palliative (or medical) care.  However, it doesn’t always help when the time comes.

I had many of these discussions with my former mother-in-law, Marian (who remained my friend after the divorce).  She brought up all of these discussions.  She did not want to live a life that she could not reasonably enjoy.  The problem with her dementia, which crept up slowly on her, was that by the time it was advanced, she was in no position to make arrangements to end her life.  We can’t help her now.  (It would be murder for anyone to purposely end her life.)  Assisted suicide is a crime in all U.S. states except Oregon, Washington State, and Montana.  (It is legal in some countries around the world.)

Marion is now almost 98 years old and has been essentially a vegetable for 5 years.  It is not what she wanted.  She told me many times. 

You could look at it as a waste of resources – money spent on caretaking a 98-year-old woman who will never get better, unless there is a medical advance tantamount to a miracle.  This money could be used for dementia research, or for starving people in the world, or to help fix environmental problems.  Another (more positive) way to look at it is that Marian’s caretaking is providing a livelihood for her caretakers.  

What if my mother-in-law had been given a choice of ending her life 5 years ago?  Could she have made that decision and put it into effect?  Under current laws, if she had decided to end her own life, she (then 93 years old) would have had to figure out how to do it, accumulated the necessary pills, and take them, without family assistance.  It’s a  set of actions and requires determination that very few people can accomplish.  

Advanced cancer is different than dementia.  With advanced cancer, when there is no treatment, you will die without having to accumulate pills to do it yourself.  So people with terminal illnesses such as cancer do have the option to opt for palliative care.  In a way, that is a fortunate silver lining to having a disease such as cancer.

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

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.