You did not have a prenuptial agreement, or your circumstances have changed significantly since you married. A postnuptial agreement is how you address that, now, while the marriage is intact, rather than in a divorce proceeding where establishing what belongs to whom will cost you considerably more.
When Couples Use Postnuptial Agreements
The situations that motivate postnuptial agreements are varied, but several patterns appear regularly:
No prenuptial agreement was signed, and one is now wanted. Many couples who should have had a prenuptial agreement simply didn't get around to it before the wedding. After years of marriage, a significant financial event, a business taking off, an inheritance received, a major career change, prompts one or both spouses to want the protection a financial agreement would have provided. A postnuptial agreement is the mechanism available.
A significant financial event occurred during the marriage. A spouse starts a business that becomes valuable. A family member dies and leaves a substantial inheritance to one spouse. One spouse receives a significant financial settlement. Any of these events can create an asymmetry that neither party anticipated and that both may want to address with a formal agreement.
One spouse is taking on significant risk. A spouse who is starting a new business, taking on substantial debt, or making a high-risk investment may want the other spouse's agreement that their personal assets are protected from the business's creditors or from the financial consequences of that risk. A postnuptial agreement can ring-fence the risk.
The marriage has encountered a crisis and is being rebuilt. In some cases, couples use a postnuptial agreement as part of a process of reconciliation after infidelity, financial misconduct, or another serious breach of trust. The agreement reflects a renegotiation of the financial terms of the marriage as part of a broader effort to address what went wrong. Courts are aware of this dynamic and scrutinize these agreements carefully for voluntariness.
Estate planning requires clarification. When couples are working through an estate plan, particularly in second marriages or where significant family wealth is involved, it may be necessary to define clearly what belongs to each spouse's separate estate for inheritance purposes. A postnuptial agreement can serve as part of an integrated estate and financial plan.
The Enforceability Standard
Massachusetts courts apply a demanding standard to postnuptial agreements, more so than prenuptial agreements in some respects, because of the nature of the marital relationship. Parties to a marriage owe each other a higher duty of fair dealing than parties to an ordinary contract. Courts are alert to the possibility that one spouse used the leverage of the marriage relationship, economic dependence, emotional vulnerability, or the implicit threat of divorce, to pressure the other into an unfavorable agreement.
For a postnuptial agreement to be enforceable, courts examine:
- Voluntariness. Was the agreement freely entered into, without coercion, duress, or undue pressure? The power dynamics of a marriage create a different context than a negotiation between strangers. An economically dependent spouse presented with an agreement under implicit threat of divorce or financial withdrawal is not negotiating freely.
- Full financial disclosure. Both parties must have had a fair and accurate picture of the other's financial situation, assets, liabilities, income, and expectations. Concealing a significant asset or liability at the time of signing undermines enforceability.
- Independent legal representation. While not technically required, courts give substantially more weight to agreements where both parties had independent counsel. An agreement negotiated between two represented parties, each with their own attorney, is far more likely to be enforced than one where only one party had legal advice.
- Fairness at enforcement. Massachusetts courts evaluate whether enforcing the agreement would be fair given current circumstances, not just at the time of signing. A postnuptial agreement that strips one spouse of all financial protection after a long marriage in which they sacrificed their career faces real scrutiny.
The coercion risk is real. Courts are particularly alert to postnuptial agreements negotiated in the immediate aftermath of a marital crisis, where one spouse has leverage (an affair, financial misconduct) and the other is emotionally vulnerable. An agreement reached under those conditions may reflect desperation rather than genuine consent. This doesn't mean all crisis-motivated postnuptial agreements are unenforceable, but the surrounding circumstances will receive close attention if the agreement is ever challenged.
What a Postnuptial Agreement Can Cover
The subject matter of a postnuptial agreement largely mirrors what a prenuptial agreement can address:
- Division of specific assets in the event of divorce, particularly assets acquired or significantly appreciated since the marriage
- Treatment of a family business or professional practice
- Protection of a defined inheritance or trust interest
- Alimony, amount, duration, or waiver in the event of divorce
- How debts incurred during the marriage will be allocated
- Protection of one spouse's assets from the other's business liabilities
- Provisions for specific property that has personal significance to one party
As with prenuptial agreements, postnuptial agreements cannot override a court's jurisdiction over child custody and child support. Those questions remain with the court regardless of what any private agreement says.
Postnuptial Agreements and Estate Planning
For some couples, particularly those with complex family or financial situations, a postnuptial agreement is a component of integrated estate planning rather than primarily a divorce-planning tool. Clarifying which assets belong to each spouse's separate estate, for purposes of inheritance and testamentary direction, can simplify estate administration and reduce the potential for disputes among heirs from different branches of a blended family.
In these situations, a postnuptial agreement is best addressed alongside the drafting of wills, trusts, and related estate planning documents, with all instruments reviewed together for consistency.
A postnuptial agreement that fails enforceability review is no protection at all. The time and care invested in doing it correctly determines whether it will hold.
Getting It Right
A postnuptial agreement that fails to meet the enforceability standard is no protection at all, and may create a false sense of security. Getting it right requires sufficient time for both parties to review, negotiate, and obtain independent advice; complete and accurate financial disclosure from both sides; and thoughtful drafting that reflects a genuinely mutual agreement rather than one party's demands.
If you are considering a postnuptial agreement, or your spouse has raised the idea, contact Brigantine Law for a confidential consultation. We represent both parties in postnuptial proceedings and will help you navigate the process fairly and effectively.