What is a Postnuptial Agreement?

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Most people have heard of a prenuptial agreement, especially when it comes to the lives of the rich and famous. But what about postnuptial agreements? You don’t hear about them as often but there are times when one or both spouses desire that one be implemented. A postnuptial agreement is simply a written agreement executed after a couple gets married to settle the couple’s affairs and assets in the event of a divorce.

Provisions that can be included in a postnuptial agreement include:

  • Division of property in the event of divorce or death;
  • Spousal support in the event of divorce;
  • Division of debt and liabilities in the event of divorce or death.

In Massachusetts, it was not until the case of Ansin vs. Craven-Ansin, 457 Mass. 283 (2010), that a Massachusetts Court determined whether a postnuptial agreement could be enforced. The court determined that:

  • A postnuptial agreement does not violate public policy and may be enforced;
  • The agreement must be scrutinized by a judge to determine whether each party:
    • had an opportunity to obtain separate legal counsel of that party’s own choosing;
    • whether there was fraud or coercion in obtaining the agreement;
      • agreements are not enforceable if tainted by fraud or coercion.
    • whether all assets were fully disclosed by both parties before the agreement was executed;
      • prior to signing the agreement the party seeking to enforce it must have provided the other party with a written statement accurately listing (i) his or her significant assets, and their total approximate market value; (ii) his or her approximate annual income . . . and (iii) any significant future acquisitions, or changes in income, to which the party has a current legal entitlement, or which the party reasonably expects to realize in the near future. The disclosure need not be exact, but must approximate the value of the assets.
    • whether each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and other marital rights in the event of a divorce; and
    • whether the terms of the agreement were fair and reasonable at the time of execution and remain so at the time of divorce.

If you are considering having a postnuptial agreement drafted, please call Patricia S. Fernandez & Associates. Our legal team is dedicated to helping you choose the strategy that is right for you.