By Amanda Driscoll, Law Clerk*

Ethel Brown and Francis Brown** who reside in Massachusetts have had disagreements over finances for the last few years.  Two of the three wonderful children are finally out of college and the third just finished trade school.  They have been married for 25 years and would like to stay married.  They won’t call their marriage rocky, but they argue over money. They were considering going to a marriage counselor, but wonder if there is another way to help them stay married and decrease the conflict about financial issues.  If they have deep-rooted problems, such as financial security worries or a spouse’s expensive habits, there is another option.

Another way to identify and resolve marital concerns is by constructing a postnuptial agreement. Postnuptial agreements, sometimes referred to as “postnups,” are written and implemented after the marriage has been formed. This agreement states the obligations and responsibilities each partner in a marriage is obligated to carry out. In fact, marriage is an economic partnership, thus both partners can benefit from a contract in writing describing marital terms and conditions.

Until recently, two types of enforceable contracts had been used in Massachusetts to define property rights upon divorce. These two types were prenuptial agreements and separation agreements. Prenuptial agreements are implemented before the parties marry, whereas separation agreements are at the time the parties divorce.

In 2010, the Massachusetts Supreme Judicial Court (SJC) authorized a third option: postnuptial agreements. Postnuptial agreements are executed after the marriage agreement has been formed and before the spouses have expressed intent to divorce. Postnuptial agreements resemble separation agreements more than prenuptial agreements, since if one of the spousal partners does not agree with the terms of agreement, the parties are nevertheless bound to the agreement. In contrast, if a person is dissatisfied with the terms of a prenuptial agreement, that person can walk away and not get married. Once the two parties are married, however, rights and obligations are solidified, and the spousal partners are generally bound by the terms of their premarital agreement.

In Ansin v. Craven-Ansin, 457 Mass. 283 (2010), the Supreme Judicial Court in Massachusetts held that postnuptial agreements are not automatically unenforceable as a matter of public policy. However, not all postnuptial agreements will be enforced by the court. In order for postnuptial agreements to be enforceable, the agreement must pass a five-factor test. The most significant part is the question as to whether the agreement is fair and reasonable, and the other four factors help to provide the evidence demonstrating the fair and reasonable nature of the agreement.

What is considered “fair and reasonable” is not easily specified. This factor does not require that both spouses end up with an equal amount of marital property or money. Rather, the “fair and reasonable” factor is an assessment of all circumstances surrounding the marital agreement. The judge balances various factors against one another and evaluates which way the scale tips, either being a fair and reasonable agreement and thereby enforceable, or towards an unjust, unreasonable agreement that is unenforceable.

The judge determines whether the agreement was fair and reasonable at the time of creation by looking at the big picture. This type of evaluation can involve consideration of the spouses’ motives, such as whether they entered into the agreement to financially protect themselves, or children from a prior marriage. Another important concept to consider is whether there is any disparity in relation to property division in the agreement. The context of the postnuptial agreement is to be highly scrutinized by the judge.

Next, the judge takes another look, analyzing whether the postnuptial agreement still remains fair and reasonable at the time of divorce. This analysis assesses what circumstances have changed since the postnuptial agreement was created, considering factors such as spousal parties’ current age, health, occupation and employability and other factors and whether it would be possible that one spouse would be unable to sufficiently support himself or herself if the postnuptial agreement was not enforced. If one party would in fact be unable to properly support himself or herself at the time, then the postnuptial agreement may be considered to not be fair and reasonable at the time of the divorce.

Postnuptial agreements can be an effective tool for spouses who want to determine what will happen to their marital property if they divorce. An agreement created outside the jubilance of an upcoming marriage, or amidst the turmoil of a pending divorce would likely yield best result. Nevertheless, it is important to keep in mind that if circumstances significantly change from the time in which the agreement was created and when the divorce takes place, it can run the risk of the agreement no longer being fair and reasonable.

*A fictitious couple and family.

Resources:

Grossman, Joanna. “The Enforceability of Postnuptial Agreements: Massachusetts Weighs In, Part One in a Two-Part Series of Columns on Postnuptial Agreements.” FindLaw. (2010). Available at: http://supreme.findlaw.com/legal-commentary/joanna-grossman-archive.html.

Maier, Lynn, Esq. “Why a Post-Nuptial Agreement Can Save Your Marriage.” HuffingtonPost. (December 2011). Available at: http://www.huffingotnpost.com/lynn-j-maier-esq/why-a-postnuptial-agreeme_b_997219.html.

Walckner, Stephanie. “Fair and Reasonable in Massachusetts Postnuptial Agreements.” Marital Mediation. (April 2011). Available at: http://www.maritalmediation.com/2011/04/fair-and-reasonable-in-massachusetts-postnuptial-agreements/.

*Amanda Driscoll graduated from Suffolk University in May 2013 with a major in public administration and a minor in business law. While at Suffolk University, Ms. Driscoll was in the Griffin Honor Society,  the Secretary of the Suffolk University Environmental Club and an Eco Ambassador of Suffolk University Sustainability. She currently attends Mass. College of Law in Andover, Massachusetts, where she expects to graduate with a juris doctor degree in 2018 and Suffolk University in public administration, where she expects to obtain her masters degree in public administration in 2017.  Ms. Driscoll received a CALI Award for the highest grade achievement in the study of Writing and Legal Research in June 2016.