LES WALLERSTEIN
Divorce Mediator & Counselor at Law

“Agree, agree, the law is costly.” Fables of Aesop

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.