For married couples who want to contractually settle certain financial matters between them as a means of strengthening and stabilizing their marriage, the case of Ansin v. Craven-Ansin, decided by the Massachusetts Supreme Judicial Court in 2010, was great news. In the Ansin case, married couples in Massachusetts were deemed, for the first time, to have a clear right to enter into so-called postnuptial agreements (also called marital agreements) and to rely on those agreements in the event of a later divorce, provided the agreement meets certain criteria. The caveat here is that, in the event of divorce, the party seeking to enforce the agreement bears the burden of proving to the court that the criteria have been met. This burden of proof will be significantly harder to meet if the party has not had adequate legal representation in the negotiation of the agreement.

According to Ansin, for a postnuptial agreement to be enforceable in connection with a divorce, five criteria, at a minimum, must be met: (i) opportunity to obtain separate legal counsel of each party's own choosing; (ii) absence of fraud or coercion; (iii) full asset disclosure before execution of the agreement; (iv) knowing and explicit waiver of marital rights and of the right to a judicial equitable division of assets in the event of divorce; and (v) fairness and reasonableness at the time of execution and at the time of divorce.

The Court's in-depth analysis of criteria (ii) through (v) takes into account the participation of independent, experienced legal counsel in the negotiation of the agreement. In other words, it is not merely the opportunity to obtain counsel that is important, as specified in the first requirement. The actual participation of counsel is scrutinized as well and is examined in applying each of the remaining four requirements. In Ansin, the Court finds that the postnuptial agreement is enforceable against the wife. The wife's having had the benefit of counsel is a significant factor in convincing the Court to reach this conclusion.

The safest approach to negotiating a postnuptial agreement -- assuming the parties desire to have the agreement be enforced if the marriage should end in divorce -- is for each party to have the benefit of independent counsel during the negotiations. This means that if the negotiations are carried out in mediation, the parties would be well-advised to have independent counsel review the mediated agreement, whether or not the mediator is an attorney.

In Ansin, the Court provides an interesting footnote on the issue of independent legal counsel:

We do not require as do some other States, that a marital agreement will be enforceable only if each spouse is represented by separate counsel. ...Reliance on the advice of experienced, independent legal counsel, however, will go a long way toward ensuring the enforceability of an agreement. ... Here it is undisputed that both parties to this agreement not only had the opportunity to, but did, obtain separate legal counsel. (FN9)

Copyright © 2011 Marion Lee Wasserman. All rights reserved.

The above article is provided for general informational purposes. This article is based on Massachusetts law and applies to Massachusetts only. Furthermore, it is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal advice or legal opinion or as tax advice or as establishing an attorney-client relationship.