Until recently, the question of whether a postnup is even valid in Massachusetts was a question that hadn’t been answered by the courts or the legislature.  However, in a recent decision, the Supreme Judicial Court in Boston (Massachusetts’ highest court), ruled that a properly executed postnuptial agreement could be valid.

In order for a postnup to be valid, it has to meet the following 5 criterion:

1. Each party to the postnup had to have had an opportunity to obtain separate legal counsel
2. There was no fraud or coercion in obtaining the agreement
3. All assets were fully disclosed by both parties before the agreement was executed
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
5. the terms of the agreement are fair and reasonable at the time of execution AND at the time of divorce

In contrast, a valid prenup has to meet the following criterion:

1. Each party to a prenup had to have had separate legal counsel
2. There was no fraud or coercion in obtaining the agreement
3. All assets and liabilities were fully disclosed by both parties before the agreement was executed
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.

If you look at the difference between the two standards, it’s not a big gap.  However, the reason why a prenup is by far a better option is due to the fulfillment of #2 above for both – the absence of any fraud or coercion.  It’s easy to show there was no fraud or coercion in a prenup because one of the parties could simply not agree to be married (if given enough time between signing of the prenup and the marriage).  It’s much harder to show that there was no coercion during a marriage when one spouse is asking another spouse to sign a postnup OR ELSE…  It is the “or else” part that could constitute coercion and the threat of a divorce is enough to render a postnup invalid.

Many courts around the country have ruled that a contract entered into after marriage is not as strong as a contract entered into before marriage.  Courts are very skeptical when it comes to postnuptial agreements because there is inherently a coercive factor in the agreement.

The typical scenario that leads up to a postnuptial agreement is when one spouse wants to keep the marriage going while the other spouse doesn’t.  The unwilling spouse draws up a postnuptial agreement for the willing spouse to sign and makes it a condition of staying married.  The spouse signs it hoping to save the marriage enough though the terms of the agreement is against his/her interest.  This is the very definition of being coerced.  If a contract being entered into is not absolutely and entirely voluntary, without any form or coercion, then it cannot be valid.