A Contract to Stay Married

Whenever a prospective client first enters my office, I tell the prospective client that s/he can spend money on a divorce and be sad and lonely once divorced.  Or the prospective client can spend money on a marital counselor instead and have a shot at happiness.

Many times, once people begin marital counseling, they realize they can be happy if they change the financial arrangement within their marriage.  I often hear clients saying they want to start living with separate bank accounts, or they only want to continue the marriage if it’s determined now how property will be divided if they divorce in the future.  Some people want to memorialize the new arrangements or negotiations in a contract called a postnuptial or marital agreement. 

Marital/postnuptial agreements, like prenuptial agreements, are tricky because they are not always enforceable.  The Massachusetts Supreme Judicial Court discusses their enforceability in Ansin v. Craven-Ansin.  In order to be enforced, the SJC requires that the marital agreement  was “negotiated by independent counsel for each party, was not the product of fraud or duress, and was based on full financial disclosures by the husband, and that the terms of the agreement were fair and reasonable at the time of execution and at the time of divorce.” 

However, even if you meet those factors, the court may still choose to not enforce the marital agreement.  It’s worth paying an attorney to work on your marital agreement in order to increase the likelihood that the court will enforce it. 

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