A post-nuptial agreement can resolve the financial concerns and assure someone they are protected, so they can then focus their energies on a true reconciliation without worrying if they are being taken advantage of. Similar to a pre-nuptial agreement, there are very specific restrictions, on how a post-nuptial must be created for it to be enforceable in Massachusetts.
As delineated by a recent Massachusetts Supreme Court case, there are even more requirements for a valid and enforceable post-nuptial agreement than there are for a pre-nuptial agreement (though many of the requirements are similar). Ansin v. Craven-Ansin, No. SJC-10548, July 16, 2010.
Links to news stories, the opinions of numerous attorneys and mediators as well as the Ansin opinion itself are all available at MaritalMediation.com. As a summary, the Ansin decision requires that a post-nuptial agreement withstand the following scrutiny to be upheld:
- Both parties must have had the "opportunity for counsel of own choosing."
- The agreement must be in writing.
- The agreement must be made with clear knowledge of the specific marital rights being waived.
- There must not be any fraud or coercion.
- The agreement must be fair and reasonable in view of M.G.L. c. 208 s 34 and not so different from a division under that statute as to be unreasonable.
- The agreement must be fair with respect to the impact it will have on the children of the marriage.
- The agreement must be fair with respect to the impact it will have on any third parties.
- The parties must have disclosed in writing a statement of assets with approximate values.
- The parties must have disclosed in writing a statement of their approximate income.
- The parties must have disclosed in writing a statement of any reasonably expected income changes in the "near future".
- The commitment to reconciliation must not be falsely misleading.
In order to ensure that you comply with these requirements, each party to a post-nuptial agreement should consult with their own counsel and review this list (as well as the Ansin decision).
Thank you to Fern Frolin of Grindle, Robinson, GoodHue & Frolin for bringing this latest news to our attention in her presentation at the MCFM Family Mediation Institute on November, 22, 2010.