Holmes Law drafts antenuptial (prenuptial) and marital (postnuptial) agreements for couples in Massachusetts. In Massachusetts the family law practice is limited to marital agreements — contested divorce, custody and support matters are referred to counsel who appear in the Probate and Family Court regularly. Full-service family law is handled in Idaho. The scope is set out on the family law page.
Massachusetts is the outlier among the six states this firm practices in. It has no Uniform Premarital Agreement Act, almost no statute on the subject, and a divorce statute that reaches further into a couple’s property than almost anywhere else in the country. Those two facts together make a Massachusetts marital agreement both more valuable and more dependent on how it was built.
Section 34 Is the Reason to Have an Agreement
General Laws chapter 208, section 34 permits the court, in addition to or instead of alimony, to assign to either spouse all or any part of the estate of the other, including vested and non-vested benefits, rights and funds accrued during the marriage.
The Supreme Judicial Court has read “estate” broadly. In Williams v. Massa, 431 Mass. 619 (2000), the court said that under Massachusetts law a party’s estate includes all property to which the party holds title, however acquired, and confirmed that stocks and bonds gifted by the husband’s parents and interests inherited from them formed part of the marital estate available for division under section 34.
There is no category of property in Massachusetts that is automatically off the table. Not the house you owned before the marriage, not your inheritance, not the gift from your parents, not the business you started at twenty-five. All of it is within the judge’s reach.
One honest qualification, because the opposite is often oversold: being in the divisible estate is not the same as being divided. Williams itself affirmed a judge who included the inherited and gifted assets in the estate and then awarded them entirely to the husband. The accurate statement is that in Massachusetts everything you own is on the table and subject to a judge’s discretion. A prenuptial agreement is how you take it off the table rather than hoping for the discretion.
The Statute: Chapter 209, Sections 25 and 26
Massachusetts legislation on these agreements amounts to two sections, and the useful one is the one people usually get wrong.
Section 25 is the enabling provision. Before marriage the parties may make a written contract providing that, after the marriage is solemnised, the whole or any designated part of the real or personal property of either shall remain or become the property of one of them according to the terms of the contract, and such limitations take effect at the time of the marriage as if contained in a deed conveying the property.
Section 26 is the recording provision, and it has teeth. A schedule of the property, described clearly enough for a creditor to distinguish it from other property, must be annexed to the contract, and the contract and schedule must be recorded — either before the marriage or within ninety days after it — in the registry of deeds for the county where the husband resides at the time of recording, and in the registry for every county where there is land to which the contract relates. If the contract is not recorded, it is void except as between the parties and their heirs and personal representatives.
Read that exception carefully, because it defines the stakes. Failing to record does not defeat the agreement in an ordinary divorce between the two spouses. It defeats the agreement against creditors and third parties. For a couple with a family business, investment real estate or meaningful exposure to creditors, that is exactly the protection they thought they were buying, and it evaporates on day ninety-one.
Prenuptial Agreements: the DeMatteo Two-Step
Everything else comes from case law, principally Rosenberg v. Lipnick, 377 Mass. 666 (1979), Osborne v. Osborne, 384 Mass. 591 (1981), and DeMatteo v. DeMatteo, 436 Mass. 18 (2002).
DeMatteo sets a two-step framework. First the judge determines whether the agreement was valid when made. Second, the agreement must be fair and reasonable at the time of the entry of the judgment nisi — the so-called second look.
Step one: “fair and reasonable” at execution
The Rosenberg elements apply: a fair and reasonable provision for the contesting party measured at execution; that party fully informed of the other’s worth, or having independent knowledge of it; and a waiver set out in the agreement. Ordinary contract rules about fraud, misrepresentation and duress apply on top.
The threshold is not a fairness audit. As DeMatteo puts it, an antenuptial agreement need not approximate the alimony award and property division a judge would be required to make under section 34, and it is only where the contesting party is essentially stripped of substantially all marital interests that a judge may find the agreement not fair and reasonable and therefore invalid.
Step two: the second look, and what it actually asks
This is the most misdescribed rule in Massachusetts family law. The second look does not ask whether the deal turned out badly.
DeMatteo is explicit: a valid antenuptial agreement is not unenforceable at divorce merely because its enforcement results in a property division or support award a judge might not have ordered under section 34, or because it is one sided. A judge may relieve the parties of a valid agreement only where, due to circumstances occurring during the course of the marriage, enforcement would leave the contesting spouse without sufficient property, maintenance or appropriate employment to support herself. The court’s own examples are the unanticipated mental or physical deterioration of the contesting party, and the erosion by inflation of agreed support payments to a degree that nullifies what the parties plainly intended.
A note on vocabulary, since it causes real confusion. DeMatteo deliberately declined to import the uniform act’s “unconscionability” standard, holding instead that conscionability is the more appropriate term for the standard at the time of enforcement. The Appeals Court’s formulation is the clean one: an antenuptial agreement is enforceable if it was valid when executed and is conscionable at the time of divorce. Using “unconscionable” for the second look invites conflation with the very test Massachusetts rejected.
Kelcourse v. Kelcourse, 87 Mass. App. Ct. 33 (2015), is the cautionary case. Enforcement was held not conscionable where it would have left the wife a house with negative equity, documented structural problems and code violations, and repairs estimated at hundreds of thousands of dollars, on a small weekly income — leaving her without sufficient property and appropriate employment to support herself. The drafting lesson is precise: specifying a particular asset rather than a value, a percentage or a formula is a real risk across a long marriage, because the asset can decay while the agreement cannot adapt.
Timing and counsel
Massachusetts has no statutory waiting period. Biliouris v. Biliouris, 67 Mass. App. Ct. 149 (2006), enforced an agreement where the wife received the draft about a week before the wedding, was pregnant, and was told there would be no marriage without it — the court held those circumstances did not divest her of free will and judgment. She had sought independent counsel and signed against that advice, and the agreement still stood.
Do not design to that margin. Biliouris shows what survives a challenge, not what makes a challenge unlikely. Months of lead time, independent counsel on both sides and a documented exchange of financial information make the first step of DeMatteo short.
Postnuptial Agreements: Ansin and the Reversed Burden
Massachusetts did not recognise postnuptial agreements at all until 2010. In Ansin v. Craven-Ansin, 457 Mass. 283 (2010), the Supreme Judicial Court called it a long-deferred question of first impression and held that such agreements may be enforced. Following the American Law Institute, the court uses “premarital” for what most people call a prenuptial agreement and “marital” for what most people call a postnuptial one.
Before a marital agreement is sanctioned, the court said, careful scrutiny by the judge should determine at a minimum whether:
- each party has had an opportunity to obtain separate legal counsel of each party’s own choosing;
- there was fraud or coercion in obtaining the agreement;
- all assets were fully disclosed by both parties before the agreement was executed;
- 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; and
- the terms of the agreement are fair and reasonable at the time of execution and at the time of divorce.
Then comes the sentence that matters most: where one spouse challenges the enforceability of the agreement, the spouse seeking to enforce the agreement bears the burden of satisfying these criteria. The court explained that this departs from the enforcement of contracts generally, where the party attacking a contract carries the burden of showing it is invalid.
Massachusetts also scrutinises postnuptial agreements more carefully than premarital ones, and the SJC said why. Before marriage the parties have greater freedom to reject an unsatisfactory contract — if the terms are unsatisfactory, a party is free not to marry. The circumstances surrounding marital agreements, by contrast, are, in the court’s words, pregnant with the opportunity for one party to use the threat of dissolution to bargain into a position of advantage. Spouses stand as fiduciaries to each other and are held to the highest standards of good faith and fair dealing.
The practical translation for a client is short. A fiancé who dislikes a prenuptial agreement can decline to marry. A spouse presented with a postnuptial agreement is already legally and economically committed, so the leverage is structurally worse — and Massachusetts compensates by making the spouse who wants the agreement enforced prove it deserves to be.
Two drafting consequences follow directly. The fourth Ansin factor requires an express written waiver of the right to a judicial equitable division of assets and all marital rights; generic language saying each party keeps his or her own property does not satisfy it, and this is the element most commonly botched. And a marital agreement should recite that the parties intend to remain married and are not contemplating divorce, because an agreement negotiated when the parties intend a permanent separation is a separation agreement governed by different rules entirely.
Disclosure: the Standard Is Workable, and It Is Where Agreements Die
Inadequate financial disclosure is the most common reason a Massachusetts agreement fails. DeMatteo describes full and fair disclosure of each party’s financial circumstances as a significant aspect of the parties’ obligation to deal with each other fairly and understandingly, because they stand in a confidential relationship.
The standard is not perfection. It is sufficient that the disclosure be such that a decision by the opposing party may reasonably be made as to whether the agreement should go forward. What that means in practice is a dated schedule of assets, liabilities and income annexed to the agreement, tax returns exchanged, and a recital of what was provided and when. It is an afternoon of work that removes the single most likely line of attack.
For a Massachusetts prenuptial agreement the schedule serves double duty: section 26 requires a schedule described clearly enough for a creditor to distinguish the property, and the same document satisfies the Rosenberg disclosure element.
Alimony, Children and the Limits
Alimony can be waived or limited by a Massachusetts prenuptial agreement. That rests on case law — Osborne, DeMatteo and Austin v. Austin, 62 Mass. App. Ct. 719 (2004), affirmed 445 Mass. 601 (2005), which enforced a waiver and vacated an alimony award where the wife had sufficient assets that enforcement would not leave her without support. It is worth being precise about the source: the Alimony Reform Act of 2011 is silent on waiver by agreement, and anyone citing the Act as the authority for an alimony waiver is citing the wrong thing.
What cannot be done:
- Custody and child support cannot be contracted away. Osborne makes clear that agreements may be modified where a provision affecting custody of a minor child is not in the child’s best interests, and support for children is not the parents’ to bargain.
- A qualified retirement plan survivor benefit cannot be waived before the marriage. Under 26 C.F.R. section 1.401(a)-20, Q&A-28, consent given in a premarital agreement does not satisfy the spousal consent requirements. The waiver must be signed by the spouse, after the marriage, on the plan’s own form. This is federal and it defeats otherwise flawless Massachusetts agreements.
- Estate rights need their own attention. The surviving spouse’s elective share is governed by chapter 191, section 15, which does not itself address waiver by contract. An agreement that addresses divorce and is silent on death has done half the job, and the death half should be drafted deliberately alongside the will or trust rather than assumed.
If You Signed Somewhere Else, or You Are Moving
Massachusetts is the state where an out-of-state agreement is least likely to fit. It has no uniform act, so a document built to a statutory checklist arrives here to be measured against Rosenberg, DeMatteo and a second look at the time of divorce that no other state in this firm’s six imposes in the same form. It also has the section 26 recording requirement, which almost no out-of-state drafter knows about, and a ninety-day window that closes quietly.
If you signed an agreement in another state and now live in Massachusetts, the right question is not whether it was valid where it was signed but whether it will do what you wanted in the court that will actually read it. This firm is admitted in Idaho, California, Texas, Washington, North Carolina and Massachusetts: California, Texas, Washington, North Carolina, and Idaho. See also Massachusetts estate planning, which matters here more than in most states because the Massachusetts estate tax threshold sits well below the federal exemption and there is no portability between spouses.
How These Agreements Fail in Massachusetts
- Nobody recorded it. Section 26: ninety days, the husband’s county of residence, and every county where affected land lies. Unrecorded, the agreement is void except between the parties and their heirs and personal representatives.
- Thin disclosure. The most common killer, and the cheapest to avoid.
- An award tied to a specific asset that decays. Kelcourse. Use values, percentages or formulas, and provide for maintenance and insurance.
- Static, unindexed support. DeMatteo names inflation erosion as a paradigm second-look failure. Build in escalators, and address health insurance and disability.
- A postnuptial agreement without the express waiver of judicial equitable division. Ansin factor four, and the element most often missed.
- A postnuptial agreement that reads like a separation agreement. Different instrument, different rules.
- No independent counsel. Not strictly required, but for a postnuptial agreement, where the proponent carries the burden, it is close to essential.
- Assuming the Alimony Reform Act supplies the waiver authority. It does not; the case law does.
Frequently Asked Questions
Does a Massachusetts prenuptial agreement really have to be recorded?
Section 26 requires recording, with a schedule annexed, before the marriage or within ninety days after it, and provides that an unrecorded contract is void except as between the parties and their heirs and personal representatives. So it will still bind the two of you in a divorce. It will not protect the property against creditors or third parties. For most couples with a business or real estate, that is the whole point of the exercise.
What is the “second look”?
At divorce the judge revisits a valid agreement to decide whether enforcing it is still conscionable. The test is not whether the bargain turned out to be one sided — DeMatteo says that is not enough. It is whether circumstances during the marriage mean enforcement would leave the contesting spouse without sufficient property, maintenance or appropriate employment to support themselves.
Is a postnuptial agreement harder to enforce than a prenuptial one in Massachusetts?
Yes, and the SJC said so. Postnuptial agreements receive heightened scrutiny, and under Ansin the spouse seeking to enforce carries the burden of satisfying the five factors. The reasoning is that someone who dislikes a prenuptial agreement can decline to marry, while a married spouse is already committed.
Can we protect an inheritance that has not arrived yet?
Yes, and Massachusetts is the state where it matters most, because section 34 lets the court assign property however acquired — including what you inherit during the marriage. An agreement is the mechanism for keeping it out of the divisible estate rather than relying on the judge’s discretion.
Do we each need our own lawyer?
Separate counsel is not strictly required, but Ansin lists the opportunity to obtain counsel of each party’s own choosing as the first factor, and the court noted that separate representation goes a long way toward ensuring enforceability. For a postnuptial agreement it should be treated as standard. One lawyer cannot represent both sides.
How long before the wedding should we sign?
There is no statutory minimum in Massachusetts. Aim for months rather than weeks. A short runway does not automatically void an agreement — Biliouris proves that — but it hands a challenger a story, and stories are what second looks are made of.
Talk to Holmes Law
Holmes Law is a solo practice. The attorney who takes your call is the one who drafts the agreement, and Massachusetts agreements are drafted to the Massachusetts standard — including the section 26 recording step that out-of-state forms leave out. If you are engaged, already married, or holding an agreement signed elsewhere that has never been reviewed against Massachusetts law, that is worth an hour of someone’s time now rather than a hearing later.
Call the Massachusetts line at (857) 353-6373 or use the Massachusetts contact page.