For decades, courts throughout the United States have upheld the validity of premarital or antenuptial agreements. Premarital agreements allow the engaged couple to plan what will happen with their separate and joint property upon death or in case of divorce. Most states, however, will not uphold the validity of postnuptial agreements, which are marital agreements entered into by a couple after the marriage but before the contemplation of divorce. Many courts refuse to enforce such agreements as it is believed that postnuptial agreements encourage divorce. While, before the marriage the engaged couple have greater freedom to reject unsatisfactory agreements, many courts feel that a married couple in a postnuptial agreement has less freedom to negotiate, especially if one spouse is threatening divorce unless the agreement is signed.
Massachusetts is one of only a few states which will enforce a postnuptial agreement, known in Massachusetts as a “marital agreement”. In concluding that marital agreements may be enforceable, the Supreme Judicial Court stated “before a marital agreement is sanctioned by a court, careful scrutiny by the judge should determine at a minimum whether (1) each party has had an opportunity to obtain separate legal counsel by each parties own choosing; (2) that there was no fraud or coercion in obtaining the agreement; (3) all assets were fully disclosed by both parties before the agreement was signed; (4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce; and (5) the terms of the agreement are fair and reasonable at the time of execution and at the time of divorce.”
Given the high level of scrutiny the courts will apply to postnuptial agreements, married couples should discuss with their separate attorneys the best way to prepare the marital agreement to maximize the likelihood that the court will enforce it in case of divorce. It is important to note that the party seeking to enforce the marital agreement upon divorce has the burden or responsibility to prove to the trial judge that the marital agreement/postnuptial agreement meets the criteria outlined by the Supreme Judicial Court.
If you have any questions regarding premarital agreements or postnuptial agreements, please feel free to contact an attorney at Hamblett & Kerrigan.
Kevin P. Rauseo is a former director at Hamblett & Kerrigan P.A. and has since been appointed as a Justice for the New Hampshire Circuit Court. Please feel free to contact another attorney at Hamblett & Kerrigan to discuss your legal issues.