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Post-marital agreement enforceable in MA?

Are post-marital agreements enforceable in Massachusetts? Also, are they the same thing as post-nuptial agreements. In another post you discussed post-nuptial agreements and said they were enforceable in some case, but you didn't say when or under what circumstances they might be enforced. Thanks.

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Yes, post-marital agreements, aka post-nuptial agreements, aka marital agreements are enforceable in Massachusetts. Married couples sometimes use them to determine how marital and other assets will be divided in the event of a divorce. However, because of the concern that one spouse may coerce the other into signing a post-marital agreement ("sign this or I'm going to divorce you"), Massachusetts courts will scrutinize them carefully.

Under a recent Massachusetts Supreme Judicial Court decision, when asked by one party to enforce a post-nuptial agreement (the burden of proof will be on the party seeking to enforce the agreement), MA judges must determine whether: (1) both parties were given the opportunity to hire an attorney to review the agreement; (2) there was any fraud or coercion applied in reaching the the agreement or in its execution; (3) both parties made full and complete disclosures with respect to their assets; (4) both parties knowingly and explicitly agreed in writing to waive their rights to a judicial division of assets and other marital rights if/when either party filed for divorce; and (5) (the catch-all) the post-nuptial agreement's terms were fair and reasonable to both parties at the time of the execution of the agreement AND at the time of divorce. Hope that helps.

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