A postnuptial agreement, which Massachusetts courts call a marital agreement, is a contract between spouses who are already married and intend to stay married, setting out how property and support will be handled if the marriage later ends in divorce or death. Massachusetts enforces these agreements, but only since 2010, and under a standard that is more demanding than the one applied to prenuptial agreements. A Massachusetts postnuptial agreement attorney drafts with that heightened scrutiny in mind from the first conversation. Holmes Law is the practice of Michael Holmes, an attorney admitted in Massachusetts and five other states.
In Massachusetts, Holmes Law’s family law work is limited to marital agreements: prenuptial and postnuptial agreements. It does not handle divorce, separation agreements in a pending divorce, custody, child support or other family court matters in Massachusetts; full-service family law is offered only in Idaho. This page goes deeper on postnuptial agreements than the broader Massachusetts marital agreements page and pairs with the page on Massachusetts prenuptial agreements. It is general information, not legal advice, and one attorney cannot represent both spouses.
Why Married Couples Sign Postnuptial Agreements
Couples come to a postnuptial agreement for many reasons. One spouse may be about to receive a significant inheritance or gift, join a family business or start a company. A couple may have married without a prenuptial agreement and now want the clarity one would have given them. One spouse may be leaving the workforce to care for children and want security in return. A couple may be reconciling after difficulty and want to settle financial questions so they can move forward. Some agreements are driven by estate planning, particularly in second marriages where each spouse has children from a prior relationship.
The underlying reason is the same as for a prenuptial agreement. Under G.L. c. 208, § 34, a Massachusetts court dividing property on divorce can reach all property of either spouse, however and whenever acquired, as the Supreme Judicial Court confirmed in Williams v. Massa, 431 Mass. 619 (2000). Premarital assets, inheritances and a family business can all be included, although inclusion does not mean they will be divided; Williams affirmed awarding inherited assets entirely to the spouse who inherited them. A marital agreement replaces that uncertainty with terms the spouses chose.
Ansin v. Craven-Ansin: The Governing Case
Massachusetts had no appellate decision on the enforceability of agreements between spouses in an intact marriage until Ansin v. Craven-Ansin, 457 Mass. 283 (2010). The Supreme Judicial Court held that such agreements are not against public policy and may be enforced, but only after careful review. There is no statute specifically governing marital agreements in Massachusetts; Ansin is the framework.
Why the scrutiny is heightened
The court explained that a marital agreement stands on a different footing from a prenuptial agreement. Before marriage, a party is free to walk away and not marry. After marriage, spouses owe each other duties, and the agreement is made in a setting “pregnant with the opportunity for one party to use the threat of dissolution to bargain themselves into positions of advantage.” For that reason, marital agreements receive careful scrutiny that the court contrasted with the enforcement of contracts generally.
The five Ansin factors
Under Ansin, a court asks whether:
- Each party had an opportunity to obtain separate legal counsel of their own choosing.
- There was no fraud or coercion in obtaining the agreement.
- Each spouse fully disclosed their assets to the other before the agreement was signed.
- Each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce.
- The terms of the agreement are fair and reasonable at the time of execution and at the time of divorce.
The court stated that “the spouse seeking to enforce the agreement shall bear the burden of satisfying these criteria.” That allocation is one of the most important practical points about Massachusetts marital agreements. The spouse who benefits from the agreement should expect to prove, possibly many years later, that each factor was met, so the agreement and the record of how it was made must be built to carry that burden.
It is sometimes said that Ansin reversed a rule placing the burden on the challenger of a prenuptial agreement. That overstates the law. No Massachusetts appellate decision expressly allocates the burden for prenuptial agreements. The accurate point is that Ansin announced a heightened level of scrutiny for marital agreements and placed the burden expressly on the enforcing spouse.
How the Ansin Standard Shapes Drafting
Counsel
Separate counsel for each spouse is not an absolute requirement under the first factor, which speaks of an opportunity to obtain counsel. In practice, a postnuptial agreement signed without independent counsel for the spouse giving up rights is much harder to enforce. Holmes Law represents one spouse, and the other should retain separate Massachusetts counsel with enough time to review the agreement and the disclosure.
Disclosure
Disclosure under Ansin should be comprehensive: all assets and liabilities, with values, and income, attached as schedules and supported by documents on request. Because the enforcing spouse bears the burden, the disclosure package, its dates and each party’s acknowledgment of receipt should be preserved with the signed agreement.
Explicit written waivers
The fourth factor requires that each spouse knowingly and explicitly agree in writing to waive the right to a judicial equitable division of assets and marital rights on divorce. Generic boilerplate is weak evidence of that. The agreement should state in plain terms that each spouse understands that, without the agreement, a court could divide property under G.L. c. 208, § 34 and award alimony, and that each is giving up those rights to the extent the agreement provides.
No coercion
Timing and circumstances matter. An agreement presented during a crisis, with an explicit or implied threat of divorce, is the setting the court warned about. A deliberate process, adequate time between the first draft and signing, and negotiation through counsel all help show that the agreement was freely made.
Fair and Reasonable at Signing and at Divorce
The fifth Ansin factor looks at the agreement twice: its terms must be fair and reasonable both when it is signed and when the divorce occurs. That echoes the two-step review developed for prenuptial agreements in DeMatteo v. DeMatteo, 436 Mass. 18 (2002), where the second look asks whether enforcement would leave a spouse without sufficient property, maintenance or appropriate employment to support themselves because of circumstances arising during the marriage. The Ansin formulation is worded as a fairness test at both points in time, and it is applied with the heightened scrutiny described above, so a marital agreement should be drafted to look fair not only on the day it is signed but under the range of circumstances in which it might be enforced.
In Ansin, the court applied these factors and enforced the agreement. Each spouse had independent counsel, the parties had exchanged disclosure and negotiated the terms, and the agreement gave the wife a substantial cash payment plus a share of the growth in marital assets after it was signed. The case illustrates the process, not a guarantee; each agreement is judged on its own facts.
The asset-specific problem identified in Kelcourse v. Kelcourse, 87 Mass. App. Ct. 33 (2015), applies equally to marital agreements. A provision awarding a spouse a particular property can become unconscionable if that property later loses its value. Values, percentages and formulas are more durable.
Consideration and the Contract Basics
A marital agreement is a contract, and the usual requirements apply: a writing, signatures, capacity and consideration. Mutual promises, including each spouse’s waiver of rights, can supply consideration. Some agreements also provide a present transfer, such as retitling of a home or funding of an account, which can reinforce both consideration and fairness. The agreement should be signed with formality: before a notary, with each spouse’s counsel present or available, and with acknowledgments of disclosure and counsel.
Marital Agreements Compared With Separation Agreements
A marital agreement is made by spouses who intend to remain married. A separation agreement is made by spouses who are divorcing and is presented to the Probate and Family Court for approval, for example with a joint petition under G.L. c. 208, § 1A. The two are reviewed differently, and a separation agreement can merge into the divorce judgment or survive as an independent contract, a distinction discussed in Knox v. Remick, 371 Mass. 433 (1976). Holmes Law does not handle divorce matters in Massachusetts, so it does not prepare separation agreements. Couples who have already decided to divorce should retain Massachusetts divorce counsel.
Alimony and Child-Related Provisions
Massachusetts courts have enforced limitations and waivers of alimony in agreements under the case law, including Ansin itself. The Alimony Reform Act of 2011, G.L. c. 208, §§ 48–55, governs alimony generally, but it does not address waiver by agreement and should not be relied on for that point. An alimony provision in a marital agreement is scrutinized closely at the conscionability stage, so a graduated structure, such as payments that increase with the length of the marriage, is often more durable than a flat waiver.
A marital agreement cannot bind a court on custody, parenting time or child support. Those issues are decided under the child’s best interests and the Massachusetts Child Support Guidelines when they arise.
Estate Planning and Retirement Accounts
A postnuptial agreement is often as much an estate planning document as a divorce planning one, and it should be drafted together with each spouse’s Massachusetts estate plan.
- Elective share. The surviving spouse’s right under G.L. c. 191, § 15 to take against the will is not itself addressed in the statute as something waivable by contract, so any waiver should be drafted separately and deliberately rather than inferred from general language.
- Qualified retirement plans. Under 26 C.F.R. § 1.401(a)-20, Q&A-28, spousal consent to waive plan survivor benefits must be given on the plan’s own form, signed by the spouse and properly witnessed. A postnuptial agreement signed during marriage does not substitute for that form, so the agreement should require the forms and the spouses should complete them.
- Estate tax. Massachusetts has a $2,000,000 estate tax threshold with no portability between spouses. Where an agreement changes what passes to a surviving spouse, the estate tax plan, including any revocable trust, should be reviewed at the same time.
- Second marriages. Agreements often commit each spouse to a plan that provides for the survivor while preserving assets for children of a prior relationship, frequently through a trust.
When a Postnuptial Agreement May Not Be the Right Tool
A marital agreement is not always the right answer. Where one spouse feels pressured, or where the marriage is already breaking down, an agreement signed under those conditions is exactly what Ansin warned against, and it may not survive review. Where the real goal is protecting assets for children or providing for a surviving spouse, a trust, a revised will, beneficiary designations or a change in how property is titled may accomplish more with less risk. And where the goal is protecting an inheritance that has not yet been received, the person making the gift can often protect it more effectively by leaving it in a properly drafted trust, such as an irrevocable trust, rather than outright.
Holmes Law begins each marital agreement matter by asking what the agreement is meant to accomplish and whether a different tool, or a combination of tools, would do it better. When a postnuptial agreement is the right choice, the process runs much like a prenuptial agreement: a confidential consultation with one spouse, exchange of complete financial disclosure, a draft negotiated between the spouses’ separate counsel, signing with formality and adequate time, and updates to the couple’s estate planning documents afterward. The signed agreement, the disclosure schedules and correspondence showing that both spouses had counsel and time to consider the terms should all be kept together, because under Ansin the spouse relying on the agreement will need them.
Frequently Asked Questions
Are postnuptial agreements enforceable in Massachusetts?
Yes, since Ansin v. Craven-Ansin (2010), if they satisfy the five Ansin factors, including terms that are fair and reasonable both at signing and at divorce. The spouse seeking to enforce the agreement bears the burden of proving them, and the agreement receives careful scrutiny.
Who has the burden of proof?
Under Ansin, the spouse seeking to enforce the marital agreement. That is why the record of counsel, disclosure and negotiation should be preserved with the agreement.
Do both spouses need lawyers?
Ansin requires an opportunity to obtain separate counsel. As a practical matter, independent counsel for each spouse is one of the strongest protections for the agreement. A Massachusetts postnuptial agreement attorney can represent only one spouse.
Can a postnuptial agreement protect an inheritance?
It can define an inheritance, and the income and growth on it, as separate property and set out how commingled funds will be treated. That is one of the most common reasons couples sign one.
Is a postnuptial agreement the same as a separation agreement?
No. A marital agreement is made by spouses who intend to stay married. A separation agreement is made in connection with a divorce and approved by the court. Holmes Law prepares marital agreements only in Massachusetts.
Can a postnuptial agreement decide custody or child support?
No. Those issues remain for the court under the child’s best interests and the Child Support Guidelines.
Speak With a Massachusetts Postnuptial Agreement Attorney
If you and your spouse are considering a marital agreement, Holmes Law can advise one of you on the terms, prepare the disclosure and agreement to meet the Ansin standard, and coordinate it with your estate plan. Contact Holmes Law about a Massachusetts postnuptial agreement to arrange a consultation with Michael Holmes.