By Michelle M. Mulvena, Esq.
Most couples entering into wedded bliss prefer not to think about division of property or divorce, and the use of postnuptial agreements has been an under-utilized concept – for good reason. Not only is the subject touchy, but until recently, the status and enforceability of these contracts was uncertain.
In July 2010, this all changed with a landmark ruling. In the case of Kenneth S. Ansin vs. Cheryl A. Craven-Ansin, the Supreme Judicial Court of Massachusetts found postnuptial marital contracts to be enforceable in the Commonwealth. We now have a clear decision on the acceptability and standards of these agreements.
Here’s what you need to know. For a postnuptial agreement to be upheld by the courts, each party must have the opportunity to obtain individual legal counsel of their choosing. The agreement also must be free from fraud or coercion, and all assets must be fully disclosed by both parties before the agreement is executed. Finally, each spouse must understand and intend that executing the agreement may limit their marital rights in a divorce.
Postnuptial agreements can serve a variety of purposes, including offering peace of mind and promise of fair support for stay-at-home spouses; protecting spouses with children from a prior relationship; ensuring an inherited family business stays in the family; and resolving marital problems and financial concerns.
Although marital agreements are meant to protect parties in times of trouble, the agreements should be executed when times are good. This helps ensure that each spouse is treated fairly, with love and respect. Rather than viewing these agreements as the beginning of the end, they should be seen as a proactive step in building a strong and happy future.
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Michelle Mulvena is an attorney at Moschella & Winston, a law firm specializing in legal planning and protection for individuals and families for over 30 years. Please contact her at mm@moschellawinston.com or (617) 776-3300.
Ms. Mulvena gratefully acknowledges research and editing provided by Law Clerk Andrea O’Brien.
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