Written by attorney Kevin M Corr

Postnuptial Agreements are Recognized in Massachusetts

MASSACHUSETTS RECOGNIZES MARITAL AGREEMENTS WITH ANSIN V. CRAVEN-ANSIN By: David H. Lee, Esq. & Kevin M. Corr, Esq. Lee & Levine LLP, Boston, MA Last year, with the case of Ansin v. Craven-Ansin, 457 Mass. 283 (2010) (Ansin), the Massachusetts Supreme Judicial Court (SJC) joined "the majority of States to address the issue" and became the latest to articulate standards by which to recognize the validity and enforceability of "marital" agreements (also known as post-nuptial agreements). Now retired Chief Justice Margaret H. Marshall, the decision's author, noted that Ansin presented a "long-deferred question of first impression." Id. at 288, citing Fogg v. Fogg, 409 Mass. 531, 532 n.2 (1991) (where, nineteen years earlier, the SJC left "to another day" the question of whether marital agreements were valid, as the agreement there did not get beyond the "threshold requirement" of being free from fraud). Justice Marshall included Ansin among her most important decisions when announcing her retirement shortly after its release. The decision and the analysis that forms it are an indication of the respect that courts across the country now have for married peoples' right and freedom to contractually order and decide their own financial interests in the absence of a present intention to dissolve their marriage. "[A] marital relationship need not vitiate contractual rights between the parties." Ansin, 457 Mass. at 288. As defined by the American Law Institute, to which the SJC looked for guidance in Ansin, a "marital agreement" is "an agreement between spouses who plan to continue their marriage that alters or confirms the legal rights and obligations that would otherwise arise under [the State's applicable divorce statutes] or other law governing marital dissolution." American Law Institute, Principles of Family Law and Dissolution: Analysis & Recommendations ? 7.01(1)(b) (2002) ( "ALI Principles"). While acknowledging that marital agreements are not the product of arms length negotiations, the SJC rejected any assumption that such agreements are "innately coercive" and typically entered into amid threats of divorce or are induced by illusory promises of remaining in a failing marriage. Recognizing, however, that circumstances in which marital agreements are formed may be "pregnant" with opportunity for one party to use the threat of dissolution to bargain into a position of advantage, the Court articulated a duty of "absolute fidelity" between spouses and set forth a two-part analysis that may be the most "rigorous" of any state. The Court expressly distinguished marital agreements from both premarital agreements, where the unmarried parties have a greater freedom to reject, and separation agreements, where the separating spouses deal with more self interest and against the backdrop of a permanent dissolution of their marriage. With the safeguards of its analysis in place, the SJC granted that marital agreements provide useful opportunities to inhibit dissolution of marriages and to protect the interests of children from prior relationships. As it is the most recent national high court judicial review of the subject matter, and with its detailed articulation of standards calling for careful scrutiny of the procedural and substantive formation of marital agreements, Ansin is recommended reading for family law practitioners and probate lawyers from all reaches. A marital agreement that passes muster under the sort of "heightened scrutiny" set forth in Ansin would seem more than likely to satisfy the applicable standards of any other state. Though not a substitute for reading the case, the first six (6) letters of the alphabet can provide an easy way for remembering the essential components of a valid and enforceable marital agreement: A) there must be full ASSET disclosure; B) the BURDEN of satisfying the criteria necessary to have a valid agreement falls on the spouse seeking enforcement, not the challenging spouse; C) the opportunity for independent COUNSEL must be available; D) there must be freedom from DURESS, fraud and coercion; E) there must be EXPLICIT and knowing waivers of the parties' rights for judicial determination of legal rights; and F) the agreements must be FAIR and reasonable both at the time of execution and at the time of divorce. [space limitations do not permit entire article - available on request]

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