Agreements Made During the Marriage
In July 2010, the Supreme Judicial Court addressed the validity of Marital or Postnuptial Agreements (financial agreements entered into by a married couple while they are still married, that would alter their financial rights in a divorce). This important case, Kenneth S. Ansin v. Cheryl A. Craven-Ansin, holds that Postnuptial Agreements are valid and do not go against public policy. However, because the circumstances of the parties when executing a Postnuptial Agreement are so different than when they are entering into a Prenuptial or Premarital Agreement (financial agreement entered into prior to marriage) or a Separation Agreement (financial agreement pursuant to a divorce), they must be treated differently.
As such, a Marital Agreement must meet the following standards:
- Each party must have had an opportunity to obtain separate legal counsel of their own choosing;
- There cannot have been any fraud or coercion by either party. The spouse seeking to enforce the agreement will have the burden of showing the court that the agreement was entered into without fraud or coercion. Both parties must have had the opportunity to negotiate the terms of the agreement, and neither party must have been "misled in any way by a spouse that at the time seems committed" to staying married, but was only pretending in order to obtain an agreement.
- All assets must have been fully disclosed by both parties before the agreement was executed. This standard is met when "prior to signing the agreement the party seeking to enforce it 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."
- Each spouse must have knowingly and explicitly agreed in writing to waive his or her right to a "judicial equitable division of assets and all marital rights in the event of a divorce" (i.e. a different division than that which may have resulted after application of the legal standards). This standard can be satisfied by showing that each party was represented by independent counsel, that they had adequate time to review the agreement, that they understood the terms of the agreement and their effect, and that they understood what their rights would be should they not enter into the agreement.
The terms of the agreement must have been fair and reasonable at the time of execution and at the time of divorce. There are several factors that a Judge may consider when reviewing whether an agreement was fair and reasonable at the time that it was entered into. These include whether the parties each had separate counsel of their own choosing, what the financial difference was between what was set forth in the agreement and what would have likely resulted after application of the legal standards, whether the purpose of the agreement was to protect the interests of third parties (such as children from a prior relationship), the length of the marriage, the motives of the parties, and the existence of pressure on the contesting spouse.
Westborough and Worcester Marital Agreement Lawyer
As detailed above, it is imperative that you have experienced representation when negotiating the terms of your Postnuptial Agreement.
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