USA – MASSACHUSETTS TRENDS AND DEVELOPMENTS Contributed by: Caterina S Wurman and Madeline R Pelagalli, Fitch Law Partners LLP
that “[b]efore marriage, the parties have greater freedom to reject an unsatisfactory premarital contract”, so – given that is not the case where the parties are already married – “careful scru - tiny” of postnuptial agreements is needed (Ansin v Ansin, 457 Mass 283, 289, 291 (2010)). To determine whether a postnuptial agreement is enforceable, which must be established by the non-contesting party, the court examines if: “(1) each party has had an opportunity to obtain sep - arate legal counsel of each party’s own choos - ing; (2) there was fraud or coercion in obtaining the agreement; (3) all assets were fully disclosed by both parties before the agreement was exe - cuted; (4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce; and (5) the terms of the agreement are fair and reasonable at the time of execution and at the time of divorce” (Id at 291 (footnotes omitted)).
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