Post-Nuptial Agreements/Laurie Israel, Esq.

Posted on January 2, 2012

0


Ed. Note: A post-nuptial agreement takes place after a marriage has begun. This article, written on a Mass. case, explains how post-nuptial agreements can sometimes be of great help in preserving a marriage. The SJC reference is to the Supreme Court of Mass. MR

On July 16, 2010, the Massachusetts SJC ruled that postnuptial agreements were not per se unenforceable as against public policy.  In the much-awaited ruling in  Ansin v. Craven-Ansin, (SJC-10548 July 16, 2010), the unaminous court held that if the spouses later divorce,  the agreement must be carefully scrutized, and provided a list of factors that would indicate a particular postnuptial agreement would be enforced or not.     For link to case, http://www.sociallaw.com/slip.htm?cid=19996&sid=120

Among the standards are that there was opportunity to obtain separate legal counsel, there was no fraud or coercion in inducing the agreement, full disclosure is made, there is a knowing waiver of rights to a judicial equitable division of marital assets and other martial rights in the event of a divorce.

And most importantly, the Court held that a postnuptial agreement must be “fair and reasonable at the time of the execution and at the time of divorce”.  This means that the postnuptial agreement must be more like a separation agreement (one made at the time of divorce) than a prenuptial agreement (one made before the marriage).  An earlier case, DeMatteo v. DeMatteo, 436 Mass. 18 (2002),  had provided a lesser standard to prenuptial agreements than separation agreements, stating that in order to be enforceable, prenuptial agreements they must not be “unconscionable” and must not strip a spouse of viritually of  of his or her marital rights.   As another protection to the contracting spouse against whom the contract is being enforced, it is the spouse seeking enforcement that has the burden to satisfy the court as to all these critia.

Ansin v. Craven-Ansin is the first Massachusetts case addressing postnuptial agreements since Fogg v. Fogg, 409 Mass. 531 (1991).  In Fogg, parties entered into a postnuptial agreement which required the Husband to transfer valuable properties to the Wife.  Shortly thereafter, the Wife filed for divorce.  The Court held that the Wife had not entered the agreement in good faith, and in famous footnote 2 “left for another day” the question as to whether marital agreements were valid.

July 16, 2010 was that “other day”, and SJC provided cogent, protected and reasonable standards which will assist spouses in drafting the agreements that will protect and promote their marriages.

In our marital mediation practices, we find couples who want to preserve their marriages, but need our help. Too often struggling spouses think that divorce is their only choice.  A carefully conceived written postnuptial agreement addressing a certain problem that is causing the marriage to derail is often exactly what a couple needs to eliminate the conflict that is tearing them apart.  In our work, we have seen many marriages begin to flourish again after a postnuptial agreement is carefully conceived and signed by the spouses.

 

Advertisements