Marital Agreements

Previously known as ‘postnuptial’ agreements, Marital Agreements are private contracts negotiated by spouses with no imminent plans to divorce, who wish to define certain rights and obligations while married, regardless of whether they are living together or apart.

Unlike both premarital agreements and separation agreements, marital agreements are not recognized by statute in Massachusetts. However, marital agreements have been recognized as enforceable since 2010, when the Massachusetts Supreme Judicial Court upheld their validity in the case of Ansin v. Craven-Ansin, (457 Mass. 283). The fact that marital agreements are not drafted in specific anticipation of divorce is the key element that differentiates them from separation agreements.

While separation agreements must be found to be fair and reasonable by a judge at the time of divorce, marital agreements may never be heard in court, and may or may not be used in the context of divorce. Furthermore, divorcing couples may decide to incorporate some marital agreement provisions into their separation agreement but not others… or to negate their marital agreement in its entirety at the time of divorce.

Problems concerning the enforceability of marital agreements are largely non-existent when divorcing spouses agree. Contested marital agreement disputes that cannot be resolved by the parties are settled in court, and the Ansin decision provided the following guidelines.

“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.”

While the Ansin court requires consideration of whether each spouse had the opportunity to hire separate lawyers while the marital agreement was negotiated, it did not compel either spouse to retain counsel.