Process

Separation Agreements

Benefits

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 However, "if the parties eventually were to marry, the [cohabitation] agreement is no longer valid, and the rules concerning antenuptial, postnuptial, or separation agreements will then govern any agreement thereafter entered into by them."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.

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PRENUPTIAL AGREEMENTS

Prenuptial agreements (also called antenuptial agreements) are contracts made by people before they marry. They are designed by prospective husbands and wives to define and limit their separate ownership interests in property after marriage. Prenuptial agreements do not take effect until the marriage has occurred. An enforceable prenuptial agreement determines the distribution of marital assets at the end of a marriage- immediately after the wedding.

Prenuptial 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 prenuptial 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 prenuptial agreement in its entirety. Problems arise when divorcing spouses
dispute the enforceability of their prenuptial agreement at the time of divorce.

Arguments about the enforceability of prenuptial agreements are settled in court. Massachusetts subjects disputed prenuptial agreements to a dual examination. To be upheld, a contested agreement must be found to have been "fair and reasonable" both at the time it
was signed and at the time enforcement is sought.

The Supreme Judicial Court recently re-defined the "fair and reasonable" standard applied to prenuptial agreements at the time enforcement is sought. In DeMatteo v. DeMatteo, 436 Mass. 18 (2002) the court established a new "conscionability" standard. Under this new standard, if a prenuptial 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 prenuptial agreement is requested from the meaning of "fair and reasonable" at the moment of its inception.

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POSTNUPTIAL AGREEMENTS

Postnuptial agreements are contracts made by spouses after they marry, but not in anticipation of divorce. The fact that postnuptial agreements are not drafted in anticipation of divorce differentiates them from separation agreements. Unlike both prenuptial agreements and separation agreements, postnuptial agreements are not recognized by statute in Massachusetts. Most importantly, the enforceability of a disputed postnuptial agreement in Massachusetts is currently uncertain.

This is so because the last time the Massachusetts Supreme Judicial Court considered postnuptial agreements it ruled: "We leave to another day whether agreements made after the parties have been married, and not in anticipation of an immediate divorce, are valid." Fogg v. Fogg, 409 Mass. 531, 532 (1991).

Nevertheless, the Fogg court clearly contemplated the potential enforceability of a postnuptial agreement. "Assuming, without deciding, that this type of agreement is valid, it must be free from fraud and coercion." (Fogg at 532.) "Although we decline to determine whether postnuptial agreements are valid, we note that, if valid, they would at least have to meet the same threshold requirements of antenuptial and separation agreements." (Fogg at 536.)

Divorcing spouses may decide to incorporate the terms of their postnuptial 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 postnuptial agreement in its entirety. Problems concerning the enforceability of postnuptial terms disappear when divorcing spouses agree. When parties to divorce dispute the enforceability of their postnuptial agreement, a judge will decide.    return to top

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.