Types of Marital Agreements

Most people approach marriage with high hopes. Today, a marital agreement is a commonly accepted way for you to put your financial history and expectations on the table. Discussing your finances while things are going well is usually a better idea than waiting until conflicts arise and emotions are running high to decide if the car in your driveway is shared property.

Prenuptial and Postnuptial Agreements
These agreements both serve the same purpose – stating how financial assets and property will be divided in the case of divorce or death – but have one basic difference. A prenuptial agreement is created before your marriage, while a postnuptial agreement is created during your marriage.

Both can be as simple or as broad as you wish, or as your situation requires. You each list your assets and debts, and with the help of attorneys, decide which will become shared property and which will remain solely yours in the event of divorce or death, and add any additional provisions, for example, alimony or support payments. Once you sign the agreement, it can be changed or cancelled if you both agree to the change.

To see what these forms look like, visit the U.S. Legal Forms website.

A prenuptial or postnuptial agreement will most likely be accepted if both parties had the opportunity to be legally represented, if there was no fraud or coercion involved, if all assets and debts were made known by both parties, if each spouse agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce, and finally, if the division was fair both at the time the agreement was created and at the time of divorce.

The Debate About Postnuptial Agreements
Postnuptial agreements are still a hot topic because many are drafted during troubled times in the marriage and there is more chance for coercion or fraud around the time of the signing.

Postnuptial agreements were not generally recognized in Massachusetts until a recent Supreme Judicial Court ruling in Boston. Read more about the Ansin vs. Craven-Ansin case. Even after this ruling, the court looks at the situation and the agreement very carefully to make sure they meet all the conditions listed above before validating the agreement.

Separation (Settlement) Agreements
You submit a separation agreement to the court if you plan to file for divorce and can agree on the terms with your spouse. This type of agreement defines the legal end of your relationship with your spouse and settles all issues such as property division, child custody, support, and questions such as who will live in the house while divorce proceedings are going on.

Why Do I Need an Agreement?
If you get a divorce and you do not have an agreement in place, your property and assets will be divided according to Massachusetts law. Massachusetts is an “equitable distribution state,” which means all the property acquired during your marriage will most likely be equally split. A prenuptial, postnuptial, or separation agreement will protect the property you state is solely yours from being equally split as shared “marital property” (for example, providing for children or protecting property acquired from a previous marriage).

It is important that each of you are represented by your own attorney to help prepare your agreement. In case your agreement is ever contested in court, you can be sure that it complies with current Massachusetts laws and has the best possible chance of being declared valid.

Contact us today if you have any questions about these agreements or if you would like to discuss your options.