Introduction The book in a nutshell This book is about the vast body of rules that silently and invisibly go into effect when you say “I do” or move in together. It explains when you need to know the rules, when you should tailor the rules by written agreement and how to do it. And—fanfare!— it marks the introduction of a new approach to marital and living-together agree- ments, developing positive and constructive features in them that no couple should be without. The result is a relationship agreement, which is a document that is so different from what has gone before that it deserves a new name to distinguish it from others, so we call it the Couples Contract. There are sound reasons why some couples, even of modest means, should redefine their financial relationships; but every couple—yes, every single one!— should make the basic Couples Contract found in this book and (so far) nowhere else. Going far beyond money and property, our agreement is written in positive and loving language that underscores the couple’s commitment to a lasting relationship. It will keep the couple forever out of the adversarial legal system and it introduces concepts that will someday help solve problems if any arise. Marriage contracts developed a dark past. They have typically been legalistic, money-grubbing things, often used when a woman marries a wealthy man to strip her of property, support and inheritance rights. But now they have a bright future when applied for the benefit of every couple to an important new purpose. You might find it surprising that agreements that can rescue relationships are the logical extension of more than thirty years’ experience helping thousands of people get through divorces more smoothly with less cost and pain. Breaking up is a very dicey business, so emotionally charged that a misstep can produce the stereotypical nightmare divorce, yet we found that a few specific changes in how couples go about breaking up will make a huge difference in the degree and duration of conflict, often alleviating most of it. We also learned that the earlier we can get involved in a case, the more effective we can be at smoothing things out, helping people avoid missteps before too much damage is done. Well, guess what? The best time to begin is before there is any sign of trouble at all, or at least before it becomes entrenched. If we can ix 16 introduce our principles that early, why, there might not be any breakup at all. Principles very similar to those that enable a smooth breakup can resolve issues before they destroy the relationship and can, in fact open lines of communication and strengthen ties. Experience and statistics show that couples who follow these steps have better relationships and a far lower rate of breakup. *     *     * This is a book you can talk to. If you have questions to ask or problems to solve, or if you want a friendly, reliable family law attorney to act as your coach, advisor, mediator or arbitrator, call Couples Helpline. Tell them Ed Sherman sent you. x 17 How a written agreement can enhance and possibly save your relationship A. Clearing up the bad reputation of marital agreements ......................18 B. What you can accomplish with a Couples Contract .........................18 C. Introduce constructive principles into your relationship ..................20 D. Make sure your relationship never ends up in court .........................22 E. Stability if you move .......................................................................23 F. Tailoring financial relationships ......................................................23 A sample basic Couples Contract ..........................................................25 CHAPTER 2 Chapter 2 18 CouplesHelpline.com  (800) 573-5317 A. Clearing up the bad reputation of marital agreements This book marks the introduction of a new approach to marital agreements, which have had a bad reputation for being legalistic, money-grubbing things, negatively preoccupied with all that might go wrong in the future, and too often used to strip a woman marrying a wealthy man of her rights to property, support, and inheritance. It doesn’t have to be that way—and it won’t be that way for you. Marital contracts have an honorable history going back thousands of years, but they have not been put to good use for modern couples because no one thought to do it. So, we have now morphed traditional marital contracts into a new relationship agreement, the Couples Contract, that is going to do well by doing good. It is a different animal entirely—affirming and forward-looking—whose purpose is to do constructive things for loving couples and add features to their relationship that can only help. Positive, clear language. When we gave the Couples Contract its positive purpose and new role, the first thing that had to go was the terrible legalistic, sphincter-tightening language that lawyers tend to use, often as an awkward substi- tute for clear thinking and competent writing. It has no place here. The Couples Contract is written as much as possible in loving and affirming language and at all times in simple terms that everyone can understand. Commitments. The Couples Contract affirms your intention to enter into a lasting relationship based upon mutual affection, respect and friendship. In it, you also commit to a high degree of openness, honesty and good faith in all dealings with one another. In fact, this high standard of care is imposed on every married couple by California law, so why have we never seen it stated in a traditional marital contract? Never mind; it gets pride of position in our Couples Contract. B. What you can accomplish with a Couples Contract The advantages of the Couples Contract can be had by any couple at any time. It doesn’t matter if you are married, soon-to-be married, or simply living together. If you are a committed couple, you should have a Couples Contract. In fact, you can’t afford to be without one. Here’s why: How a written agreement can enhance your relationship 19 The basic Couples Contract In the basic agreement, you get very important advantages without having to go into discussions of finances or other details of your relationship. Just do it and you get these essential benefits: • Make a loving commitment to a lasting relationship • Introduce concepts that can help solve relationship problems if any arise • Make sure your relationship never ends up in court • Keep the terms of your relationship stable, no matter where you move A sample basic agreement is at the end of this chapter so you can see what one looks like. How to build your own is discussed in detail, clause by clause, in chapter 5. Beyond the basics You don’t have to, but if you want, you can add some variations to your basic agreement that will take some thought and discussion, such as: • Tailor your financial relationships to make them more suitable to your family’s needs, which for some couples will be a must (chapter 6). • Introduce faith-related principles into your family life (chapter 7) You can start with the simpler basic agreement first, then tailor it later or never, or you can tailor your agreement at the outset. In either case, your agreement can be modified at any time by following the steps described in chapter 10G. Chapter 2 20 CouplesHelpline.com  (800) 573-5317 C. Introduce constructive principles into your relationship One of the most important features you can add to any relationship—a gift that you can give yourselves—is planning in advance, while everything is smooth and lovely, to deal with issues that might threaten your relationship in the future. If you want a lasting relationship, there are specific things you can do to increase your chances. The purpose of this section in your basic Couples Contract is to plant some seeds (or lay a foundation) that will help you unravel predicaments that come up for most couples sooner or later. Most couples have no plan or idea for how to deal with such situations if they ever do occur, but not you—your Couples Contract is there to remind you that there are things you can do and resources you can turn to. You needn’t do anything at this time (although reading a bit about it wouldn’t hurt), because just having these ideas in the back of your mind will help you recognize signs that your relationship needs some attention, and you’ll have some ideas for how to respond if that happens. Look at this as a form of free health insurance. What keeps couples together The Couples Contract states directly and clearly that your intention is to preserve your mutual affection, respect and friendship, because this is the first principle of a lasting relationship. We didn’t make it up: this is the conclusion of Dr. John Gottman, a towering figure in couples counseling, who achieved this insight after more than thirty years in the research and study of couples. In his bestselling book, The Seven Principles for Making Marriage Work, he discusses why most marriage therapy fails, concluding that resolving conflicts and improving communication is important but not, of itself, what keeps couples together. Rather, he finds that “friendship fuels the flames of romance.” “. . . happy marriages are based on a deep friendship. By this I mean a mutual respect for and enjoyment of each other’s company. [Such] couples tend to know each other intimately. . . . They have an abiding regard for each other and express this fondness not just in the big ways, but in little ways day in and day out.”¹ However intense or frequent their battles, the couples that last have never lost their fondness and respect for one another. After describing the kinds of behavior that undermine mutual regard, Gottman describes seven things that happy marriages have in common, then he shows you how to introduce those seven principles into your own relationship. If ever you feel that the ties that bind are weakening, this 1 John Gottman, The Seven Principles for Making Marriage Work, page 19. How a written agreement can enhance your relationship 21 would be a good place to start looking for things you can do to rekindle affection. If you would rather look at a video or listen to a tape, the material is also available in audio or video form at www.gottman.com, where you can also learn about workshops conducted by the Gottman Institute. Other factors that contribute to relationship success include learning to express your feelings, both positive and negative; learning to disagree in ways that are not destructive; and learning to accept things you can’t change. Beyond self-help Beyond information in books, tapes and videos, there are couples workshops.  Some might find it more effective to go directly to a good couples counselor. If one of you is allergic to the idea of counseling or therapy, look for a couples coach, which might be more acceptable to some. Enter “couples coach” into Google and see what comes up, or ask a recommended therapist to serve as a coach. Many religious organizations have trained conciliators who work with couples and many clergy are trained in couples counseling. In any case, you should only work with someone who is trained, experienced and certified to do the job. The important thing is that you not sit on your hands if one of you begins to feel that your mutual regard is fading. If you are committed to your relationship, you need to make it a priority, meaning there will be times when you have to put extra effort into it—get information, go to a workshop, find a coach, counselor, or conciliator. Above all, try to discuss (nicely) things you can do to increase mutual regard and affection and decide together what steps to take. Relationship Resources Appendix B lists relationship resources that professionals have told us they recom- mend to their own clients. One we like is The Five Love Languages, by Gary Chapman, who points out that people have different ways of expressing and receiving love, so that one person might be expressing it in a way that the other does not get, as where a man works hard to earn material things for his loved one and buys her gifts, but she craves touching and nice words. It’s a matter of getting your signals staight. Other resources include the highly regarded Couple Communication workshops, which have to date trained over 600,000 people, are conducted across the U.S. by thousands of certified instructors. To find an instructor near you, visit www.couplecommunication.com. Then there’s the respected Marriage Encounter with nation-wide programs for troubled couples that are “based on Judeo-Christian concepts,” though you need not Chapter 2 22 CouplesHelpline.com  (800) 573-5317 be religious or belong to a religious organization in order to participate. You can find more information about them at www.marriage-encounter.org. But wait! There’s more! There’s a mountain of good books, tapes, videos and workshops out there that you can substitute for our examples. Go out and browse or ask your clergy, counselors or other resource people. Time spent on this subject will be richly rewarded. That’s the whole point—to make the effort. Stay tuned. This is the most innovative part of the Couples Contract, so we look forward to feedback from readers and counselors, telling of their experiences and favorite resources, which we’ll share with you on our Web site and in future editions. D. Make sure your relationship never ends up in court This section of your agreement just by itself makes it worth having a basic Couples Contract as it gets you a giant advantage for next to no effort. When you buy health insurance, you don’t intend to be sick, but you still get health insurance “just in case.” It’s exactly the same here. You don’t intend or expect to ever have a disagreement you can’t resolve—and you’ve already planted seeds for problem-solving to help make sure you don’t—but if it ever did happen, what would you do? Without this part of your agreement, if faced with a disagreement that can’t be resolved, you’d have no guidance and no alternative other than to give up or get a lawyer and go to court. Neither is acceptable. The adversarial legal system is the worst possible place to take a family dispute, a forum where it is almost certain to get stirred up into something ugly and expensive. But, now you can make sure your relationship and family matters are unlikely to ever end up in court. Instead, your Couples Contract says that if anything comes up that you can’t resolve, you will go to mediation first (which has a high success rate), but if that doesn’t solve the problem or if one of you doesn’t want to do it, you’ll take the problem to binding and final arbitration. Believe us when we tell you that, based upon our combined experience and that of every attorney at Couples Helpline, this is a thousand times better than the alternative. You want this clause! Mediation and arbitration are often referred to together as alternative dispute resolution (ADR), which has long been known to have many advantages over going to court. Courts are slow, complicated, expensive, and impersonal. If you were ever to end up there, the judge won’t know you or your family and won’t have much time or patience to learn about you or your problems. In our careers, we have almost never heard of a judge doing anything to try to save a relationship. By contrast, when you How a written agreement can enhance your relationship 23 select your mediator, you can pick someone with a talent for conciliation who can explore that possibility and take some time to explore solutions for your problems. In arbitration, you can use a three-arbitrator panel in which two of the arbitrators can be anyone you choose, perhaps someone who knows your family and your values. Another plus for ADR is that mediators and arbitrators can give attention to parts of your agreement that a court could not. A conciliator or mediator might help you settle lifestyle conflicts like housework or money-handling, which a judge would not touch. Or, if a couple agreed to raise their children according to a certain religious faith, a judge would probably ignore that provision because the constitution requires separation of church and state; but arbitrators don’t work for the state, so they can include religious or lifestyle portions of your agreement in their decision-making. E. Stability if you move The rules that govern your relationship are determined by whatever state you live in and,  as we discussed in chapter 1E, the rules can change drastically when you move from one state to another. However, your Couples Contract frees you from this threat by declaring that California law will always govern your relationship, no matter where you live. This is one way to avoid surprises. If you move to another state and find out you like some of their rules better, you can always modify your agreement (chapter 10G). It is very important to have your agreement reviewed by a family law attorney in your new state just before or right after you actually move there. F. Tailoring financial relationships First of all, finances aren’t something you have to deal with right away or at all, but you should at least be aware that if you don’t add tailoring to the basic Couples Contract, your financial and parenting affairs will be governed by California laws— one size fits all—which might not be the best fit for you. Is off-the-shelf OK? The laws that govern relationships are discussed in Part Three, but here in a nutshell is how things work in California for married people or domestic partners if there is no tailoring: • Income and gains made through efforts of either spouse belong to both • Property acquired during the union is community property (excepting inheritances or gifts to one spouse or purchases made with separate funds) Chapter 2 24 CouplesHelpline.com  (800) 573-5317 • Spouses have equal rights to manage and control income and property • The community earns an interest in the separate property, business or professional practice of a spouse whose efforts during marriage increase the value of his/her separate property or business. • One spouse might have to pay for debts incurred by the other, even those incurred before marriage • You’ll end up in court if you separate and can’t agree on terms • The duty to support children ends at age 18, or 19 if still in high school • There’s no duty to support stepchildren Is that what you want? Because, if you don’t tailor your financial relationships in a written agreement, that’s what you’ll get. Most couples live their lives under these rules, but California law is not ideally suited to everyone and you don’t have to be rich to get some advantage from tailoring. Even couples of modest means can have sound reasons for tailoring their financial relationships; for example, to arrange for: • The treatment of separate property • Children of a prior relationship • Marriage after retirement • A spouse who is in debt, a spendthrift, or in a risky business • Professional practice or separate business • Staying home to care for a child, parent or disabled family member • Anticipation of a significant inheritance • Honoring personal preferences over CA law in order to keep finances separate and/or clarify the division of responsibility. Solutions for the above situations are presented in chapter 6D, but these are just some common examples from the lives of typical families. With over 6 million couples in California, there are undoubtedly lots of other situations that deserve special tailoring, but reading through chapter 6 will help you figure out if your own situation might benefit from some tailoring and give you at least an idea of what to do about it. If you’re not sure, give us a call at Couples Helpline and we’ll help you decide if you can benefit from tailoring and how to do it. Now or later. You might decide that tailoring your financial relationships would be a good idea for your family, but unless there’s some pressing reason, you don’t have to do it immediately. You can enter into the basic agreement first (chapter 5), and later modify it (chapter 10G) to add the tailoring. This puts your agreement in place early, gets you all the major advantages, and lets you take more time to work out the financial matters later.