As divorce rates in the United States continue to skyrocket, couples keep searching for new ways to protect their relationships and their wallets. Thanks to the contractual nature of the marital relationship, the wary fiancé or exhausted spouse may dictate certain terms relating to his impending marital union or dissolution in the form of a prenuptial or separation agreement. While both agreements are widely accepted options for defining and restricting the rights and liabilities one assumes upon entering or ending a marriage, many jurisdictions recently began entertaining and sanctioning a third method, the postnuptial agreement. The conditions and components required to produce a legitimate postnuptial agreement, however, differ radically from state to state.
Massachusetts, having declined to address the issue in the past despite acknowledging the opportunity, recently spoke up in the case of Ansin v. Craven-Ansin, rejecting the theory that postnuptial agreements are per se against public policy. Instead, the court held that such agreements are valid, provided, however, that the circumstances prompting the agreement and the terms of the agreement satisfy certain requirements. The Massachusetts standard for upholding postnuptial agreements is moderate as compared to other states’ approaches. Ohio, for instance, falls at one end of the spectrum, statutorily abolishing postnuptial agreements as per se against public policy, while Utah takes the opposite position, treating postnuptial agreements no differently than prenuptial agreements.
This Note will first look at how marital law has evolved, specifically focusing on the Massachusetts law that paved the way for the Ansin decision. It will then address the general policy concerns associated with postmarital contracting, focusing on the differing levels of scrutiny that select state courts and legislatures apply to postnuptial agreements, all while exploring the underlying philosophies fueling these decisions. In doing so, it will also consider how the Massachusetts approach, as reflected in the Ansin decision, comports with not only these assorted viewpoints but also with the state’s position on related topics pertaining to marriage, namely, how the judiciary’s rationale behind defending same-sex marriage ought to be considered when assessing the appropriateness of its present approach to postnuptial contracting. Lastly, this Note will consider the most effective means of protecting the policy concerns, such as threats of unfair bargaining power and general inequities, ultimately concluding that Massachusetts may wish to bolster its standard of review as the current considerations may not provide adequate protection. . .