Postnuptial Agreements: What are they, and how do they work?

Sandra and Steve have been separated for two years but recently reconciled. While Steve is happy to have moved back into the marital home and enjoy marriage with Sandra again, he is also concerned. What if they separate again? Setting aside the emotional turmoil issues, is there a way for Steve to protect his assets in case of a separation or divorce in the future?

In Massachusetts, married couples are entitled to enter into binding legal contracts with each other.  The Commonwealth expressly recognizes postnuptial, or marital agreements, whereby a married couple seeks to decide matters of property division, alimony, and other marital rights. It is important to distinguish marital agreements from prenuptial agreements (also called antenuptial agreements)—unlike a prenuptial agreement, the marital agreement is entered into AFTER the marriage.

In the case of Ansin v. Craven-Ansin, [1] the Court set out the five-part test which must be met in order for a post-nuptial agreement to be enforceable. The test requires the following:

  1. That each party has had the opportunity to consult independent counsel before signing the agreement;
  2. That neither party has used fraud or coercion in obtaining consent to the agreement;
  3. That both parties have fully disclosed all assets prior to the execution of the agreement;
  4. That each spouse has knowingly waived his or her rights to property-sharing and to support upon divorce; and
  5. That each spouse deems the terms of the agreement “fair and reasonable.”

In that case, a husband and wife entered into a marital agreement where the wife waived her rights to certain assets. At the time of divorce, the wife claimed that the marital agreement was unenforceable. The Supreme Judicial Court found that the wife had made a voluntary and informed choice in signing the agreement; that she was represented by counsel; that there was no sign of coercion or duress; and that she was aware of the rights she was waiving as part of the agreement. The Court upheld the agreement’s provisions.

If you have questions about postnuptial agreements as they might relate to your case, schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

[1] Ansin v. Craven-Ansin, 457 Mass. 283 (2010).