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Postnuptial Agreement Is Enforceable in Massachusetts but Not yet in New Hampshire

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A husband in a divorce could enforce a postnuptial agreement protecting his interest in Florida real estate, Massachusetts’ highest court ruled on July 16, 2010. The parties had entered into a postnuptial agreement after 19 years of marriage in response to problems that had developed in their relationship.  Under the agreement, the wife relinquished any interest in approximately $5 million in Florida real estate owned by the husband through his family’s businesses.

When the parties later divorced, the husband argued that the postnuptial agreement was enforceable because it was negotiated by independent counsel for each party, based on full financial disclosures, and fair given that the husband was obligated to pay the wife $5 million.

The Massachusetts court rejected the notion that postnuptial or “marital” agreements are categorically unenforceable and stated:

“Marital contracts are not the product of classic arm’s-length bargaining, but that does not make them necessarily  coercive. …”

“Such contracts may inhibit the dissolution of a marriage or may protect the interests of third parties such as children from a prior relationship.  In any event, a marital agreement will always be reviewed by judge coercion or fraud played no part in its execution.”

New Hampshire legislation allows for premarital agreements but the legislation, when enacted decades ago, deleted a provision for post-marital agreements.  Thus, the same result here is not clear given our legislative history.