What Is a Massachusetts Postnuptial Agreement?
A Massachusetts postnuptial agreement is a legal contract that dictates how assets and debts will be divided if the marriage ends. A postnup is distinct from a prenuptial agreement, which is created before marriage. With a postnup, spouses intend to stay together but plan for potential issues while on good terms.
Spouses tend to create a postnup when they inherit or acquire money or property they want to protect. They may also write it if they experience troubles related to debt or poor money habits.
Without a postnup, Massachusetts follows equitable distribution laws. These guidelines call for the fair division of property in a divorce agreement. Courts look at many factors when deciding what is just. For example, they may survey both parties’ incomes or the length of the marriage. They may also look at caregiving responsibilities and health conditions. A postnup overrules default state laws so you and your spouse can decide what works best.
How to Write a Postnuptial Agreement for Massachusetts
A legally valid postnup requires several key elements. Our Massachusetts-specific template walks you through the writing process, which includes these steps.
- List initial information: Give both parties’ names and addresses. Write in their marriage information, including the date and location.
- Specify asset treatment: Determine whether property will be treated as separate or joint property. Explain the division if the marriage ends.
- Protect business ownership: Discuss the treatment of businesses acquired before and during marriage.
- Disclose debts: Include directives on which spouse will be responsible for debts.
- Determine tax status: Decide how you and your spouse will file tax returns.
- Assign marital home: Include information about the marital home and what will happen to it if the marriage ends.
- Plan for pets: A pet custody agreement outlines which spouse will keep ownership of pets.
- Set spousal support: Massachusetts law dictates alimony terms in the state (MA Gen L ch 208 § 48). However, a postnup can overrule the default rules if spouses agree to a different arrangement.
- Add other clauses: Include additional clauses, such as information on the care of a disabled spouse. You can also specify whether a surviving spouse will inherit the personal property of a deceased spouse.
- Resolve disputes: Explain how you’ll work through issues. You can choose to submit any disputes to mediation or arbitration in the event of a divorce.
- Sign and notarize: Notary acknowledgment is encouraged but not required. It can increase the postnup’s validity and reduce questions later.
Sample Massachusetts Postnuptial Agreement
View a free Massachusetts postnuptial agreement template to understand its structure. Then, write your own using our document editor. Available to download in PDF or Word format.
Legal Requirements and Considerations for Massachusetts Postnups
Case law shapes postnuptial agreements in Massachusetts. When deciding whether a postnup is enforceable, courts look at the entire context of an agreement. For example, they consider how it affects children, the length of the marriage, and each spouse’s motives. They also account for unfair bargaining positions when the spouses wrote the agreement.
If a postnup is later challenged, the spouse seeking to enforce it will have to prove that these standards were met.
Signing Requirements
Both spouses must voluntarily sign the postnuptial agreement (Ansin v. Craven-Ansin (2010)).
Legal Representation
Massachusetts doesn’t require the parties to have lawyers review a postnup. But each party must have the opportunity to hire independent counsel. If one spouse later disputes the agreement and proves they didn’t have this chance, the postnup may be invalidated.
Excluded Terms
Postnups cannot cover issues of child custody or support. They also cannot include clauses that prevent a divorce. Massachusetts prohibits spouses from using a postnup to plan for divorce.
Enforceability Requirements
According to Ansin v. Craven-Ansin (2010), postnups are enforceable when:
- Each party had the opportunity to hire separate legal counsel.
- The agreement is free from evidence of fraud or coercion.
- Both parties disclosed all assets and debts.
- Each spouse agreed to waive their rights to equitable division of assets (MA Gen L ch 208 § 34) or spousal support (MA Gen L ch 208 § 48).
- The terms are reasonable at the time of writing.
Distinction from Separation Agreements
Massachusetts distinguishes postnups from separation agreements. Postnups outline a plan in case a marriage ends, but couples don’t write them with plans to separate. On the other hand, they write a separation agreement to prepare for a divorce.
