Postnuptial Agreement Requirements in Massachusetts

A postnuptial agreement in Massachusetts is enforceable only if it satisfies the five factors the Supreme Judicial Court set out in Ansin v. Craven-Ansin: each spouse had the opportunity for independent legal counsel, the agreement was free of fraud and coercion, both spouses made full financial disclosure, each knowingly and explicitly waived their marital rights in writing, and the terms are fair and reasonable both when signed and when a court is asked to enforce them.1Justia Law. Kenneth S. Ansin v. Cheryl A. Craven-Ansin Massachusetts has no statute governing postnuptial agreements, so the entire framework for postnuptial agreement requirements in Massachusetts comes from case law, and courts apply tougher scrutiny to these contracts than they do to prenuptial agreements signed before marriage.2General Court of Massachusetts. Massachusetts General Laws Chapter 209 – Section 25

The reason for the heightened review is practical. Spouses negotiating mid-marriage face a different kind of pressure than engaged couples. Refusing to sign risks an existing marriage, not a canceled wedding, and judges account for that imbalance when they decide whether a signature was truly voluntary and whether the deal was truly fair.

The Five Ansin Factors

Every postnuptial agreement in Massachusetts is measured against the same five criteria. Fail any one of them and a judge can set the entire document aside.1Justia Law. Kenneth S. Ansin v. Cheryl A. Craven-Ansin

  • Opportunity for independent legal counsel. Each spouse must have had a real, unobstructed chance to hire their own attorney. Actually retaining one is not required, but the opportunity has to be genuine.
  • No fraud or coercion. The agreement cannot be the product of deception or pressure. Hidden assets, misrepresented values, or threats used to extract a signature all defeat enforceability.
  • Full financial disclosure. Both spouses must lay out all assets and liabilities before signing. Incomplete disclosure is the most common reason these agreements get thrown out.
  • Knowing and explicit written waiver. Each spouse must acknowledge in writing that they are giving up the right to a judicial equitable division of assets and other marital rights.
  • Fair and reasonable terms. The agreement must be fair when signed and still fair when enforcement is sought.

The Second-Look Fairness Test

The fifth factor is where Massachusetts diverges sharply from most states. Many jurisdictions ask only whether an agreement was fair on the day it was signed. Massachusetts asks twice: at execution and again at enforcement.1Justia Law. Kenneth S. Ansin v. Cheryl A. Craven-Ansin

An agreement that looked balanced when both spouses earned similar incomes can be struck down years later if one spouse becomes disabled, leaves work to raise children, or suffers a serious financial reversal. A judge evaluating enforcement will ask whether the terms would leave either spouse without sufficient means of support given present circumstances. This dual-point test makes Massachusetts postnuptial agreements inherently less predictable than those in single-point states, which is why attorneys often build flexibility into the terms rather than lock in rigid dollar figures.

Financial Disclosure in Practice

Full disclosure is not a formality. It is one of the five Ansin factors, and hiding even a single known asset can invalidate the whole agreement.1Justia Law. Kenneth S. Ansin v. Cheryl A. Craven-Ansin Each spouse should compile a comprehensive financial statement covering:

  • Assets. Current appraisals for real estate, recent statements for bank and investment accounts, retirement balances (401(k) plans, IRAs, pensions), and the value of any business interests.
  • Liabilities. Mortgages, car loans, student loans, credit card balances, and any other outstanding debts.
  • Income. Current salary, bonuses, commissions, and any other recurring income sources.
  • Future interests. Anticipated inheritances, vested stock options, or expected payouts that could affect the agreement’s fairness over time.

These records become formal exhibits attached to the agreement. Err on the side of over-inclusion. A missing asset discovered years later gives the other spouse a powerful argument for voiding the contract. If either spouse owns a business, a professional valuation is typically necessary to put a defensible number on the disclosure.

What You Can and Cannot Put in the Agreement

Without a postnuptial agreement, Massachusetts courts divide property in divorce by weighing a long list of factors, including the length of the marriage, each spouse’s income and employability, contributions as a homemaker, and the needs of dependent children.3General Court of Massachusetts. Massachusetts General Laws Chapter 208 – Section 34 A postnuptial agreement lets couples replace that open-ended judicial discretion with terms they choose themselves. Common provisions include:

  • Property division. You can specify how marital property will be split and designate certain assets, such as premarital property or inheritances, as off-limits in a divorce.
  • Alimony terms. Couples can agree on the amount and duration of spousal support or waive it entirely. Massachusetts law otherwise caps alimony duration based on the length of the marriage; in a marriage lasting ten years or less, for example, alimony generally cannot exceed 60 percent of the months the marriage lasted. A postnuptial agreement can set different terms, though the second-look doctrine still applies.4General Court of Massachusetts. Massachusetts General Laws Chapter 208 – Section 49
  • Estate and inheritance rights. A surviving spouse in Massachusetts can claim an elective share of the deceased spouse’s estate. A postnuptial agreement can waive that right, which matters particularly for blended families where each spouse wants assets to pass to children from a prior relationship.

Children Are Off the Table

Child custody and child support cannot be decided by a postnuptial agreement. Massachusetts courts retain full authority over anything affecting children and will decide those issues based on the child’s best interests at the time of separation, regardless of what any contract says. A judge will ignore or strike custody and support provisions in a postnuptial agreement.

Signing and Keeping the Agreement Valid

Both spouses must sign voluntarily. In the postnuptial context, “voluntarily” carries real weight given the heightened scrutiny courts apply. If one spouse presents the agreement as an ultimatum during a marital crisis, that context can support a finding of coercion. Timing helps: the more breathing room between initial discussions and the signing date, the harder it is to argue anyone was pressured.

Massachusetts has no statute requiring postnuptial agreements to be notarized. Having both signatures notarized is standard practice anyway because it provides the authentication courts expect if the agreement is challenged. A notary verifies each signer’s identity and confirms they signed willingly, creating a contemporaneous record that is difficult to dispute later.

Store the original in a secure location such as a fireproof safe or a bank safe deposit box, and have each spouse’s attorney keep a copy. Digital backups are useful, but courts may require the physical original during litigation. When financial circumstances change significantly after signing (a major inheritance, a career change, the birth of a child), revisit the agreement with your attorney. Changed circumstances are exactly what the second-look doctrine evaluates, and an agreement that no longer reflects reality is one a judge is more likely to set aside.

Changing or Canceling It Later

A postnuptial agreement is not permanent. Spouses can mutually agree to modify or revoke it at any time, and the practical approach is to draft an entirely new agreement that supersedes the old one. The same safeguards apply to the replacement: independent counsel for each side, fresh financial disclosures, and terms that satisfy the Ansin factors. Neither spouse can unilaterally revoke the agreement. Both must consent to any change, and those changes should be documented with the same formality as the original to avoid enforceability problems down the road.