What is a Postnuptial Agreement?
A Postnuptial Agreement is a document signed by spouses during the course of their marriage concerning the division of marital property in the event of Divorce. A postnuptial agreement is different from a prenuptial agreement because it was signed after a legal marriage has taken place.. Sometimes married couples that did not have enough time to execute a prenup will draft and sign a postnuptial agreement. A postnuptial agreement can address many aspects of marital assets such as division of assets and definition of separate property in a future divorce. Divorce can be traumatizing so it comes as no surprise that often couples seeking a postnuptial agreement are doing so because one or both the spouses had a previous marriage that did not work out and want to protect themselves and their financial future.
Postnuptial Agreement Enforcement
Postnuptial Agreements are legally enforceable in Massachusetts, provided certain requirements in its drafting and execution are met.
The Court will examine the following:
Separate Counsel
For a postnuptial agreement to be valid, the evidence must show that each spouse had the opportunity to obtain separate legal counsel of his or her choosing to represent his or her interests in negotiating the marital agreement.
Free From Fraud or Coercion
Before a postnuptial agreement will be sanctioned by the court, it must be satisfied that neither fraud nor coercion played a role in the agreement. Evidence of lengthy and/or vigorous negotiations involving separate experienced counsel is persuasive evidence that neither fraud nor coercion were involved. If it is alleged that a party misrepresented his or her intention to stay in the marriage at the time the agreement was signed, the court will look to evidence illustrative of intent to the contrary.
Full Disclosure of Assets
Before a postnuptial agreement is signed there must have been a full disclosure of assets. The duty of spouses to fully disclose assets is greater in the context of a postnuptial agreement, first because of the duty of absolute fidelity owed by spouses to each other, and second because there is no legal safeguard, like court-ordered disclosure in divorce, to compel full disclosure. The requirement of full disclosure can generally be satisfied if prior to signing each party provides the other with a written statement accurately listing approximate values of significant assets, income and future assets and income to which the party either reasonably expects to realize or has a current legal entitlement to.
Knowing waiver of rights granted under law
Because postnuptial agreements establish each party’s property rights in the event of divorce, it is critical to the agreement’s validity that each spouse knowingly and explicitly agreed in writing to waive his or her property rights granted under law. This means a party should understand the argument’s effect on property rights and the extent to which that effect differs if the agreement had not been executed.
Fair and reasonable
A postnuptial agreement must have been fair and reasonable at the time it was executed as well as at the time of divorce. In analyzing the fairness of the agreement at the time it was executed, the court will consider the entire context in which it arose, including the magnitude of any disparity between the outcome under the agreement compared to outcome under prevailing legal principles, whether the purpose of the agreement was to protect the interests of third parties (such as children from prior relationships), the impact of the agreement on the parties’ children and the length of the marriage. In analyzing the fairness of the agreement at the time of dissolution of marriage, the court will consider, among other factors, the financial and property provisions as a whole, the context of the negotiations and the complexity of issues involved.
Experienced Family Law Attorney
The strict requirements that go into drafting a postnup agreement require an experienced attorney that can ensure that the document is properly written. Oftentimes a postnup will address substantial assets and real estate so getting it done right is critical. Your initial consultation should provide you with legal advice and help outline the agreement and answer any questions you may have about your marital rights or asset division. A post-nuptial agreement attorney should go over the financial disclosure process with you and then provide you with a draft agreement for your review as well as review by your spouse and their independent counsel. Contact our law firm to schedule your confidential consultation by calling us or filling out a form.