Postnuptial Agreements

Once prohibited, postnuptial agreements are now enforceable contracts in most states, and now in Massachusetts. In a recent case, Ansin v. Craven-Ansin, the Supreme Judicial Court (SJC) of Massachusetts ruled that an agreement made by the parties after they married which sought to determine the financial consequences of any future divorce, was not against public policy and therefore enforceable. Much like a prenuptial agreement the contents of a postnuptial agreement can include provisions for such things as alimony and property division in the event of a separation by divorce or death.

The courts seek to apply a greater level scrutiny when looking at postnuptial agreements than to prenuptial agreements. In Ansin v. Craven-Ansin the court laid out the following five factors that must be considered:

  1. Whether each party had the opportunity to obtain separate legal counsel of their own choosing;
  2. Whether there was fraud or coercion in obtaining consent to the agreement. The judge will seek to ensure that the parties were not misled in any way, that the party seeking to enforce the agreement showed dedication to the marriage both before and after the agreement was signed, and that it is clear that both parties made an informed, voluntary decision to sign the agreement.
  3. Whether all assets were fully disclosed prior to the execution of the agreement. This element may be satisfied if prior to the signing of the agreement the party seeking to enforce it provided a written list which includes (1) significant assets and approximate value, (2) approximate income, and (3) any significant future acquisitions or changes to income which the party expects;
  4. Whether each spouse knowingly waived his or her rights to a judicial equitable division of assets and all marital rights in the event of a divorce. A judge will consider (1) whether both parties were represented by separate legal counsel, (2) the time the parties had to review the agreement, (3) both parties’ understanding of the terms and effect of the terms of the agreement, and (4) the parties’ understanding of their rights in the absence of an agreement.
  5. Whether the terms of the agreement are fair and reasonable at the time of execution and at the time of divorce.

In evaluating the agreement at the time of execution the judge will consider the entire context in which the agreement was reached and may consider among other relevant factors (1) the length of marriage, (2) the motive of the contracting spouse, (3) the circumstances giving rise to the agreement, (4) the impact of the agreement will have upon the children of the parties, (5) the difference between the outcome of the agreement and the outcome under other legal principles, and (6) whether the purpose was to benefit or protect the interest of any third parties.

In evaluating the agreement at the time of divorce a judge may consider among other relevant factors (1) the objecting party’s complaint, (2) the agreements provisions for property and financial division, (3) the context of negotiations between the parties, and (4) the complexity of the issues involved in the agreement.

It is also important to note that the court has imposed the burden of proof in postnuptial agreements on the party seeking enforcement.