Prenuptial agreements do not carry the stigma that they once did, and today many couples choose to protect their assets through such an agreement. The postnuptial agreement, which is created after a couple is already married, is less well known by society. Just like prenuptial agreements, postnuptial agreements can be very helpful for property division during a divorce.
In Massachusetts, postnuptial agreements are scrutinized very closely and courts will deem them invalid more often than prenuptial agreements. Courts have reasoned that when a couple is already married, there is more chances that one person will coerce the other into signing an agreement.
To determine whether a postnuptial agreement (postnup) is valid, Massachusetts courts look at five factors. First, the court wants to see that each person had the opportunity to seek the advice of an independent attorney. Second, all assets need to be fully disclosed by each partner prior to signing the postnup. Third, courts want to ensure that each spouse understood at the time they created the postnup that by signing the document, they were waiving certain property rights. Fourth, courts will look for any suggestion that there was fraud or coercion in getting one spouse to sign the postnup. Finally, courts will take a look at the agreement as a whole and determine if it is fair and reasonable given the circumstances.
While these requirements may seem daunting, courts are simply looking for situations in which one spouse coerced the other into signing an agreement. These requirements should not deter spouses from creating a postnuptial agreement.
The process to validate a postnuptial agreement might be longer than a prenuptial agreement and it is crucial to understand the steps needed when drafting and signing these documents. When both spouses desire a postnuptial agreement and are honest with each other, there will be no coercion and it will be very likely that the postnuptial agreement will satisfy all the elements that courts look for.
Source: Forbes, "Divorcing Women: When You Earn More Than Your Husband," Jeff Landers, April 10, 2013