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
With respect to prenuptial agreements, practi - tioners 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 public policy – they must be the result of fair disclosure at the time of exe - cution and must be fair and reasonable 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 agreement 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 par - ties 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 DeMat - teo, 436 Mass 18, 762 NE 2d 797 (2002), which confirmed that a prenuptial agreement must be deemed fair and reasonable at the time of enforcement. However, the definition 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 valid contracts in Massachusetts. Practition - ers generally look to Ansin v Craven-Ansin, 457 Mass 283 (2010), where the Supreme Judicial Court of Massachusetts articulated the stand - ards to recognise the validity and enforceability of such agreements. In Ansin, the court described the need for a heightened scrutiny when deter -
mining the validity of the agreement. The burden of proof is on the party seeking enforcement. For a postnuptial agreement to be found valid and enforceable, the court must find that: • there was full financial disclosure; • each party had the opportunity for independ - ent 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 Unmarried cohabitants do not acquire any prop - erty rights under Massachusetts’ matrimonial laws. Rather, upon the breakdown of the rela - tionship, unmarried couples may seek relief through the court’s equity powers. To establish a right to property, an unwed party 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 inequity (whether that be by the unjust enrich - ment 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 substan - tial property interest that is so impactful that a child can be immediately and directly left unpro - tected 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
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