USA – MASSACHUSETTS Law and Practice Contributed by: Steven E Gurdin, Barbara L Drury, Carlos A Maycotte, Stephen A MacKenzie and Kelly A Schwartz, Fitch Law Partners LLP
The court has the authority to order ongoing alimony upon entry of a judgment of divorce. The Massachu ‑ setts Alimony Reform Act of 2011 details the types of alimony available to a divorcing spouse and sets specific guidelines for the length and amount of such alimony awards. 2.5 Prenuptial and Postnuptial Agreements Prenuptial and postnuptial agreements are widely used and recognised in Massachusetts. They are often used to protect premarital wealth, future gifts or inheritances, beneficial interests in family trusts, and family businesses. They also often address issues of alimony and a surviving spouse’s right to the dece ‑ dent’s assets if a marriage ends by death. The law in Massachusetts is well settled on the enforceabil ‑ ity and process for entering into both prenuptial and postnuptial agreements. With respect to prenuptial agreements, practitioners generally look to Osborne v Osborne , 384 Mass 591, 428 NE 2d 810 (1981), where the court held that – although such agreements are not per se against pub ‑ lic policy – they must be the result of fair disclosure at the time of execution and must be fair and reason ‑ able at the time of divorce. It is important that at the time of execution the parties make fair and accurate financial disclosures that are attached to the agree ‑ ment as a financial disclosure statement and that both parties enter into the agreement freely, voluntarily, and not subject to any form of coercion, fraud or duress. Generally, both parties have independent counsel – although having counsel is not required to have a valid prenuptial agreement. If only one lawyer is involved in the matter, the lawyer can only represent one of the parties – otherwise it is a conflict of interest. Practitioners also look to DeMatteo v DeMatteo , 436 Mass 18, 762 NE 2d 797 (2002), which confirmed that a prenuptial agreement must be deemed fair and rea ‑ sonable at the time of enforcement. However, the defi ‑ nition of fair and reasonable in this context is not what a court would do under Massachusetts divorce law if there was no prenuptial agreement but rather the court concluding that the agreement is not unconscionable. If the agreement strips a spouse of all marital rights, then the agreement could be deemed unconscionable and found invalid at the time of enforcement.
Postnuptial agreements have been recognised as val ‑ id contracts in Massachusetts. Practitioners generally look to Ansin v Craven-Ansin , 457 Mass 283 (2010), where the Supreme Judicial Court of Massachusetts articulated the standards to recognise the validity and enforceability of such agreements. In Ansin, the court described the need for a heightened scrutiny when determining the validity of the agreement. The burden of proof is on the party seeking enforcement. For a postnuptial agreement to be found valid and enforce ‑ able, the court must find that: • there was full financial disclosure; • each party had the opportunity for independent counsel; • the process was free from duress, coercion or fraud; • any waivers were knowing and explicit; and • the agreement is fair and reasonable. 2.6 Cohabitation: Division of Assets Between Unmarried Couples Unmarried cohabitants do not acquire any property rights under Massachusetts’ matrimonial laws. Rather, upon the breakdown of the relationship, unmarried couples may seek relief through the court’s equity powers. To establish a right to property, an unwed par ‑ ty can initiate a complaint in equity in those instances where a party’s contribution to property is substantial enough for the court to find that in order to avoid ineq ‑ uity (whether that be by the unjust enrichment of one party at the expense of the other) a situation existed of such trust and confidence that it would be inequitable not to bind one to act in good faith. Likewise, unmarried parents may appeal to the court’s equitable powers in seeking to award a litigant who is facing the loss of a substantial property interest that is so impactful that a child can be immediately and directly left unprotected by the unjust enrichment of one party at the expense of the other. The Supreme Judicial Court in Massachusetts has provided relief to a litigant that was induced by a significant other into such a state of dependency where parties have been involved in essentially a family unit over a significant duration of time such that a constructive trust was necessary to avoid the unjust enrichment of one party over another.
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