New Law on Marital Agreements

Hi there,

Today the Supreme Judicial Court rendered its decision in the case which has set the standard for marital agreements in Massachusetts.  I was counsel for the wife in the appeal with my partners, Susan Stenger and Robin Lynch Nardone. We did not try the underlying case.

The judgment is very bittersweet for us because the court adopted the standard that we proposed for marital agreements then went on to find that at the trial our client hadn’t met that standard.

Marital agreements are agreements between spouses that are neither divorce agreements nor prenuptial agreements. I very strongly believe that the opportunity for coercion is high in these circumstances (Honey sign this agreement or I will leave you) and we argued first that these agreements should not be enforced, but if the court was inclined to allow them there should be a different standard for their enforcement than is used for prenuptial agreements.

The SJC agreed; Marital agreements are now enforceable in Massachusetts, BUT

They must be scrutinized by the judge to determine at a minimum whether:

        (1) each party has had an opportunity to obtain separate legal counsel of each party’s own choosing;
        (2) there was 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 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. 

The spouse seeking to enforce the agreement has burden of proof on these issues. 

This will be a very useful decision for the attorneys in Massachusetts who practice domestic relations and probate law.




  1. My question is, does the new law have any effect on divorce agreements that are “survivor agreement” type? My understanding is I am stuck with this forever. Although many circumstances have changed in my life.
    Thank you in advance.
    Joe Russo

  2. Hi Joe,
    Without seeing your agreement, I can’t give you a definite answer. But the new law does say that agreements which are “surviving” agreements won’t be subject to change as a result of the new alimony law. I suggest you consult with a lawyer before you decide to do nothing.
    Good Luck,
    This Blog/Web Site and email response is made available by Attorney Nancy R. Van Tine and Burns & Levinson LLP for educational purposes only – i.e. to give you general information and a general understanding of the law, not to provide specific legal advice in relation to any situation you or anyone else may have. There is no attorney client relationship between you and the Blog/Web Site publisher, Attorney Nancy R. Van Tine or Burns & Levinson LLP. The information on this Blog/Web Site and email response should not be used as a substitute for competent legal advice from a licensed attorney in your state engaged by you for such purpose.

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