By Tracy Fischer
The Supreme Judicial Court of Massachusetts found that post-nuptial agreements entered into under specific conditions would be enforceable. Post-nuptial agreements are made by couples contemplating divorce but still trying to work on their marriage and not yet ready to commit to divorce. They are able, through this type of agreement, to decide how their assets will be divided, make financial arrangements for support, and how their children will be cared for in the event of a divorce in the future. This agreement would then allow couples to feel secure in whatever the outcome of a divorce would be and allowing the couple the opportunity to put their emotional efforts into strengthening their marriage.
Post-nuptial agreements have been fairly uncommon in Massachusetts because the law has been unsettled as to whether or not the agreement would be enforceable at the time of divorce. Now that the Supreme Judicial Court has found that post-nuptial agreements are enforceable, mediation becomes an appropriate and effective process for couples to work out the terms of their post-nuptial agreement.
As long as there are specific conditions met, the mediated post-nuptial agreement would be enforceable. The specific conditions the court has outlined are:
1. the opportunity for each party to obtain separate legal counsel of their own choosing;
2. there was no fraud or coercion in obtaining the agreement;
3. all assets were fully disclosed by both before the agreement was executed;
4. each party knowingly waives in writing the right to a judicial equitable division of marital property and assets in the event of divorce;
5. the terms of agreement are fair and reasonable at the time of execution and at the time of divorce.
Mediation of post-nuptial agreements would allow couples to discuss in a non-adversarial and supportive forum the issues that need to be addressed if divorce is imminent, as well as those issues that need to be addressed for the marriage to go forward. Skilled and experienced mediators would be best able to assist a couple in crafting an agreement which has the potential for resolving complex and emotional issues while maintaining the context that the marital relationship must be strengthened and not further damaged by this process. Mediation of a post-nuptial agreement can be a transformative experience for a couple on the brink of divorce or re-commitment to a marriage.
If you have questions about post-nuptial agreements in Massachusetts, call us to schedule a confidential consultation.
Massachusetts mediation attorney Tracy Fischer is a Greater Boston family and divorce mediator with offices in Danvers and Newton, Massachusetts. She provides mediation and family law services to individuals and families throughout the Boston Metro region including Andover, Beverly, Boxford, Burlington, Danvers, Gloucester, Marblehead, Newton, Needham, Peabody, Salem, Tewksbury, Topsfield, Waltham, Watertown, Wayland, Wellesley, Weston and Wilmington, Massachusetts.