Post-Nuptial / Marital Agreements : Our Thoughts
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-Ann Ponichtera DeNardis and Antonio Daniel DeNardis

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Post-Nuptial / Marital Agreements

by Ponichtera & DeNardis, P.C. on 03/18/11

The Supreme Judicial Court in Massachusetts recently concluded in the case of  Ansin vs. Craven-Ansin that a postnuptial agreement, also known as a marital agreement, may be enforced and is not against public policy.  This ruling brings about a major change in marital law in Massachusetts.  Now married couples can enter into a contract after they are married as a means to stay married.  A post nuptial agreement is defined by the American Law Institute, as an agreement between spouses who plan to continue their marriage which alters or confirms their legal rights and obligations that would otherwise arise through a divorce. 

In the Ansin case the couple had separated after nineteen years of marriage, and the husband refused to continue in the marriage, unless the wife signed a marital agreement as a symbol of her commitment to the marriage.   The husband similarly agreed to recommit to the marriage, if the wife signed the agreement.  The Husband and Wife each hired an independent attorney, fully disclosed all of their assets to each other, and negotiated the terms of an agreement which they signed.  After reconciling and residing with each other, ultimately the reconciliation failed, and the parties divorced two years later.  The agreement was upheld by the Court, despite the protests of the wife.

The Court concluded that before a marital agreement shall be sanctioned by a Court, careful scrutiny must be given as to whether: (1) each party has had an opportunity to obtain separate legal counsel of their 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 signed;  (4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of the marital estate and 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 the divorce.

This case now gives couples who are having marital problems an alternative to divorce.  An agreement now can be drawn up as a commitment to the relationship which would specify the terms which would prevail if they divorced.  If the couple wants to give their marriage another try, they can choose to sign the agreement, under the terms and protections specified above.  If a spouse refuses to sign the agreement, then either spouse can move forward with a divorce complaint, knowing that they at least they tried to resolve their difficulties, and tried to save their marriage through a marital agreement. 

If you have questions about how a post nuptial agreement or a marital agreement might apply to your situation, please call us for a free consultation.

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