When the case of Ansin v. Ansin, 457 Mass. 283 was decided in 2010 we got an answer to a question that was unanswered in Massachusetts. We now know how to execute binding post-nuptial agreements and that if done properly they will be enforceable in court if necessary.   Since that case was decided we have recommended to several of our clients not to divorce their spouses, but rather to stay married with a post-nuptial agreement in place to deal with the finances.

The most common reason we have recommended a post-nuptial agreement rather than divorce is when clients are older. Here is an example:

Husband and wife are both retired, living on social security and their investments. They have been separated for a year or so and now their friends and family have recommended that they divorce. One of the spouses has a medical condition that will shorten his/her life expectancy.  Neither party desires to remarry.

If these parties divorce, they will each receive half of the marital estate.  Since neither is working, there will be no alimony.  When the first of the couple dies, their assets will go to whomever they designate in their wills since they are no longer married. That could be a new romantic interest or charity or even the parties’ children.  But in any event the assets will likely not be available for the surviving spouse.

With a binding post-nuptial agreement and proper estate planning documents, the parties can stay married, but continue to live apart, and upon the death of the first to die, the survivor will have 100% of the remaining marital estate to live on. The post-nuptial agreement can also contain binding provisions regarding how the parties investments are managed, including provisions for dividing income and expenses between the parties.  This is a much better solution especially in times when retirement accounts and real estate values have been affected so badly by the recession.