Enforcing a Post-nuptial Agreement
Through a landmark case in Massachusetts, Ansin v. Craven-Ansin, 457 Mass. 283 (2010), enforcing a post-nuptial agreement in Massachusetts occurs around 5 factors, as follows:
“[T]he judge must determine, at least, 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.”
Ansin v. Cra
What Does it Mean for a Post-nuptial Agreement to be Enforceable in Massachusetts?
- “each party has had the opportunity to obtain separate legal counsel of each party’s own choosing…”
Clearly, in any agreement where terms of a contract are being contemplated, each party ought to at least have considered whether or not a lawyer is required. In most cases, parties should have an attorney review the post-nuptial agreement and indicate what each clause, term, etc., means. But here, the Court indicating that parties to a post-nuptial agreement must have had the opportunity to obtain the review of that agreement by an attorney. The concept here, in part, is to prevent a rush into an agreement that is not understood by one party. Where it would not be possible to obtain a lawyer to review a post-nuptial agreement, that agreement may not be enforceable by a court in Massachusetts.
Contact us at 978-273-8337 to have your post-nuptial agreement reviewed for procedural aspects of the agreement that affect enforceability. - “there was fraud or coercion in obtaining the agreement…”
Any contract in Massachusetts, or otherwise, might be viewed by a Court to be unenforceable where one party has been manipulated in some manner into signing the agreement. If you have evidence of such fraud or coercion contact our offices so that we can assist you in challenging the validity of the post-nuptial agreement. - “all assets were fully disclosed by both parties before the agreement was executed…”
Full disclosure of assets PRIOR to entry into a post-nuptial agreement is a must. Sometimes, however, one party to a post-nuptial agreement will hide, forget or avoid full disclosure of assets. When one party to the post-nuptial agreement takes matters into their own hands either willfully or inadvertently to avoid disclosure of ALL assets prior to entering the agreement, that agreement may be found unenforceable by a Court in Massachusetts. - “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…”
Here, the Court is acknowledging that the post-nuptial agreement must put in writing a waiver of the right to a Massachusetts Court to decide what is equitable in the division of assets and other rights of the parties to a divorce in Massachusetts. - “the terms of the agreement are fair and reasonable at the time of execution and at the time of divorce…”
When the post-nuptial agreement was signed by each party and when the divorce occurred, where the terms of the post-nuptial agreement fair and reasonable. What amounts to fair and reasonable terms will be decided by the Court if the post-nuptial is challenged in court. Contact us for more information and a review of your post-nuptial agreement to obtain some idea of how “fair” or “reasonable” your post-nuptial terms are.
Some of the factors that a Massachusetts court may use to consider whether the terms of the post-nuptial agreement are fair and reasonable are:
- Where the children to the marriage considered, addressed in the post-nuptial agreement?
The Court will want to know that the post-nuptial agreement has taken into account the impact of the agreement on the children to the marriage. Children, in this context, cannot be avoided…the Court will likely find such an agreement (a post-nuptial agreement without consideration of the children to the marriage) as unenforceable. Contact us for more information on this topic. - How long was the marriage?
Extremely short marriages where one party benefits greatly by the effect of the post-nuptial marriage, for example, may be viewed by the Court in Massachusetts as unenforceable. - Motives of each spouse.
What are the motives of a given party to the post-nuptial agreement? What are the bargaining positions of each party? Unfair bargaining positions in almost any contract may be a factor which a judge uses to consider such a contract unenforceable.
Attorney Guidance
Whether considering a post-nuptial agreement, or where one already exists, wanting a review of that agreement, an attorney with experience in divorce and other family law matters such as custody, parenting time, etc., is invaluable. Contact Attorney Gaudet for more information on this topic.
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