Signing Requirements
Both parties must sign the agreement.[1]
Laws
Role of Court: A judge will always review a marital agreement to ensure that coercion or fraud played no part in its execution.
Separation Agreements: Massachusetts distinguishes postnuptial agreements from “separation agreements,” which are signed by couples intending to get divorced.[1]
Enforceability: At a minimum, postnuptial agreements must meet the following requirements to be enforceable:
- Each party has had an opportunity to obtain separate legal counsel of each party’s choosing;
- There was fraud or coercion in obtaining the agreement;
- Both parties fully disclosed all assets before the agreement was executed;
- Each spouse knowingly and explicitly agreed in writing to waive the right to an equitable judicial 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.
Where one spouse challenges the agreement’s enforceability, the spouse seeking to enforce the agreement has the burden of proving the agreement meets these requirements.