Postnuptial Agreements: A Blueprint for Divorce

October 1, 2010
Written by Lynne C. Halem

In July of 2004, Kenneth Ansin and his wife of 19 years, Cheryl Craven-Ansin, signed a postnuptial agreement settling in the event of divorce “all rights and obligations arising from their marital relationship.”

In November of 2006, Kenneth filed for divorce, seeking to enforce the parties’ postnuptial agreement. The Probate and Family Court judge upheld the agreement and Cheryl, dissatisfied with the ruling, appealed. Granting her application for direct appellate review, the Supreme Judicial Court of Massachusetts’s August 2010 ruling received mixed reviews. Heralded by some as profound and by others as unsettling, the highest court of the state had brought the question of postnuptial agreements squarely into the public limelight, establishing the legality of postnuptials. The court went even further, clearly defining the terms for enforcement of postnuptials by setting standards which exceeded those prescribed for enforcement of prenuptial agreements (agreements signed prior to marriage). The criteria are as follows:

1. Each party must have the opportunity to secure independent legal counsel of his/her choosing.
2. The agreement cannot be “the product of coercion or fraud.”
3. Before the agreement is executed, there must be “a full disclosure of all assets of both parties, whether jointly or separately held.”
4. Each party must state in writing and agree that he/she “intends their marital agreement to limit his/her “rights in the event of divorce, and that the agreement should govern in lieu of and in full discharge and satisfaction of the rights which otherwise arise by reason” of the parties’ marriage. Thus, based on full financial disclosure, with the guidance of legal counsel, and without force or duplicity, the Husband and Wife explicitly choose to be governed by an agreement that they are signing in the present, in the event of a future happening (their divorce).
5. Lastly, the terms of the agreement must be “fair and reasonable at the time of execution and at the time of divorce”. The spouse who is challenging the agreement bears “the burden of satisfying the criteria” set forth above.

The Ansin case has raised a host of new considerations for couples. Most obvious, of course, is the newly declared validity of postnuptial agreements drafted in accordance with the Supreme Judicial Court’s criteria. Whether married couples will decide to determine their fate in the event of divorce or wait until the event is an actuality can only be hypothesized. Some may and some may not. After all, each of the court’s criterion is open to speculation and interpretation – a sure bet is not in the offering. Then, too, other couples will favor prenuptials entered into before marriage – agreements that carry less stringent criteria for enforcement and bring precedence to bear in legal rulings. Other questions surface. Will a postnuptial be upheld in the event of death? What happens to postnuptials that have been executed a decade or so before the divorce? How will the court handle changes that occur after the execution of the postnuptial? And so the questions abound. Couples who elect to enter into postnuptial agreements should carefully craft the terms with full knowledge of the court’s postscript for enforcement. Alternately, they must clearly be committed in the here and now to the terms of their agreement in the event of a future dissolution of their marriage.
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