LES WALLERSTEIN
Divorce Mediator & Counselor at Law

COHABITATION AGREEMENTS

Cohabitation agreements are contracts made by unmarried people who live (or plan to live) together. In 1998 the Massachusetts Supreme Judicial Court ruled for the first time that “unmarried cohabitants may lawfully contract concerning property, financial, and other matters relevant to their relationship. Such a contract is subject to the rules of contract law and is valid even if expressly made in contemplation of a common living arrangement....” (Wilcox v. Trautz,
427 Mass. 326, 332.)

A cohabitation agreement must be in writing to be valid. However, “if the parties eventually were to marry, the [cohabitation] agreement is no longer valid, and the rules concerning antenuptial, postnuptial, or separation agreements will then govern any agreement thereafter entered into by them.” (Wilcox at 332, footnote 4.)

Since the parties in Wilcox had no children, their cohabitation agreement did not address any child issues. Regarding agreements that do concern children, the court plainly stated “we would not, in any event, enforce those [agreements] that do not conform to the children’s best interests.” (Wilcox at 334, footnote 7.)

Parties to a cohabitation agreement do not enjoy the same legal protections as married couples. If the parties to a cohabitation agreement dispute its enforceability, a judge will resolve their
disagreement on the basis of contract law, not divorce law. Cohabitation agreements are not governed by the same “fair and reasonable” standard that governs separation agreements.

PREMARITAL AGREEMENTS

Premarital Agreements (previously known as ‘prenuptial’ or ‘antenuptial’ agreements) are contracts made by people before they marry. They are designed by prospective spouses to define and limit their separate ownership interests in property after marriage. Premarital Agreements do not take effect until the marriage has occurred. Thus an enforceable premarital agreement can determine the distribution of marital assets at the end of a marriage — immediately after the wedding.

Premarital agreements in Massachusetts are recognized by statute (Massachusetts General Laws Chapter 209, Section 25) and interpreted by many decisions. Spouses can always agree to incorporate the terms of their premarital agreement into their separation agreement at the  time of their divorce. Parties to divorce may also agree to incorporate some terms but not others, or to negate their premarital agreement in its entirety. Problems arise when divorcing spouses’ dispute the enforceability of their premarital agreement at the time of divorce.

Arguments about the enforceability of premarital agreements are settled in court. Massachusetts long subjected disputed premarital agreements to a dual examination. To be upheld, a contested premarital agreement had to be found to have been “fair and reasonable” both at the time it was signed and at the time enforcement is sought.

The Massachusetts Supreme Judicial Court recently redefined the “fair and reasonable” standard applied to premarital agreements at the time enforcement. In DeMatteo v. DeMatteo, 436 Mass. 18 (2002) the court established a new “conscionability” standard. Under the DeMatteo standard, if a premarital agreement was found to be “fair and reasonable” at the time of inception, it will be enforced unless it is found to be unconscionable at the time enforcement is sought.

The DeMatteo conscionability standard sharply differentiates the meaning of “fair and reasonable” at the time enforcement of a premarital agreement is requested from the meaning of “fair and reasonable” at the moment of its inception.

MARITAL AGREEMENTS

Marital Agreements (previously known as ‘postnuptial’ agreements) are contracts made by spouses after they marry, but not in contemplation of divorce. The fact that marital agreements are not drafted in contemplation of divorce differentiates them from separation agreements. Unlike both premarital agreements and separation agreements, marital agreements are not recognized by statute in Massachusetts. However, in 2010 the Massachusetts Supreme Judicial Court upheld the validity of marital agreements in Ansin v. Craven-Ansin, SJC-10548.

Divorcing spouses may decide to incorporate the terms of their marital agreement into their separation agreement at the time of divorce. Parties to divorce might also decide to incorporate some terms and not others, or to negate their marital agreement in its entirety. Problems concerning the enforceability of marital agreements terms disappear when divorcing spouses agree.

Arguments about the enforceability of marital agreements are settled in court. The Ansin court provided the following standards.

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 of each party’s own choosing; (2) there was fraud or coercion in obtaining the agreement; (3) all assets were fully disclosed by both parties before the agreement was executed; (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. Where one spouse challenges the enforceability of the agreement, the spouse seeking to enforce the agreement shall bear the burden of satisfying these criteria.

POST-DIVORCE MODIFICATIONS

After divorce, ex-spouses can agree to make changes in their separation agreement without going to court as adversaries. Since separation agreements are designed to be flexible they can be modified to reflect changes in the post-divorce lives of the parties. Enforceable post-divorce modifications must be in writing, and each party’s signature must be notarized. Voluntary post-divorce modifications should be filed in court by certified mail. Signed, notarized and court filed, voluntary post-divorce modifications are as enforceable as if incorporated into the original separation agreement, with one significant exception.

In 2000, a Massachusetts court of appeals ruled against the rights of divorced parents to privately agree to lower a father’s child support below the amount ordered by a judge. Quinn v. Quinn, 49 Mass. App. Ct. 144 (2000). The appeals court reasoned that parents may not bargain away the rights of their children. Since Quinn, post-divorce reductions in child support have been held unenforceable unless court ordered.

CAUTION: Do not confuse a voluntary, jointly filed modification with a “complaint” for modification. A complaint for modification is an
adversarial proceeding filed by a plaintiff against a defendant, and decided by a judge in court.

COLLABORATIVE LAW

My law practice includes representing clients in collaborative cases before and after divorce. Both parties in collaborative cases are represented by attorneys who unconditionally promise not to litigate. Without adversarial recourse, both clients and counsel are compelled to seek a negotiated agreement. If the collaborative process fails, the parties must retain new lawyers to litigate their unsettled dispute.

Collaborative legal representation offers the best hope for non-adversarial resolutions when mediation is not an option.