How Are Prenuptial and Postnuptial Agreements Different?

Marriage is usually contemplated and entered into because the parties are in love and plan to spend their lives together. The reality, however, is that almost half of all first marriages and significantly more second and subsequent marriages end in divorce. In addition, the age at which people are choosing to get married has been steadily increasing in recent decades, meaning one (or both) party may bring significant assets into the marriage. With all of that in mind, it should come as no surprise that both prenuptial and postnuptial agreements are also becoming increasingly popular. If you are planning to marry or are already married, understanding the difference between a prenuptial and a postnuptial agreement is important.

What Is a Prenuptial Agreement?

First and foremost, a prenuptial agreement is a legal contract made between two people in contemplation of marriage. The terms of a prenuptial agreement may apply in the event of divorce or the death of one party to the agreement. In Massachusetts, a prenuptial agreement may include, but is not limited to, the following:

• Deciding how property acquired before and/or during a marriage will be divided in the event of divorce.
• Determining if either spouse will receive alimony in the event of a divorce.
• Making it clear what assets or financial support children from prior relationships will receive in the event of death or divorce.
• Deciding how debts will be handled.
• Obligating either or both spouses to provide health and/or life insurance.

Will a Prenuptial Agreement Be Enforced?

Each state decides if and/or how prenuptial agreements are enforced. Massachusetts will enforce a prenuptial agreement if certain conditions are met, including:

• Full and fair disclosure of all assets and financial information prior to entering into the agreement.
• Both parties had the ability to consult with his/her own attorney prior to signing the agreement.
• The agreement was executed well in advance of the wedding.
• The agreement is conscionable at the time of the divorce.

What Is a Postnuptial Agreement?

A postnuptial agreement is similar in nature to a prenuptial agreement; however, it is important to understand that a postnuptial agreement is not an agreement made for the purposes of “divorce planning or in the anticipation of divorce.” Like a prenuptial agreement, for example, a postnuptial agreement can set forth how assets are to be divided in the event of a divorce, but it cannot be made in anticipation of divorce.

Will a Postnuptial Agreement Be Enforced?

Not all states recognize and enforce postnuptial agreements. The Commonwealth of Massachusetts addressed the issue in Ansin v. Ansin, 457 Mass. 283, 2010, holding that a married couple does not lose the right to enter into a contract with one another merely because they are married. There are, however, several important factors that must be “carefully scrutinized” before a postnuptial agreement will be enforced, including:

• Whether each party had the opportunity for independent counsel.
• Whether there was fraud or coercion in obtaining consent to the agreement.
• Whether all assets were fully disclosed prior to the execution of the agreement.
• Whether each spouse knowingly waived his or her rights to property-sharing (equitable division of assets) and to support in the event of a divorce.
• Whether the terms of the agreement were fair and reasonable at the time of the execution and are fair and reasonable at the time of a request to enforce the agreement at the time of divorce.