Imagine the following scenario: you and your spouse have been married for a certain amount of time – it probably doesn’t matter for how long or how little time – and somewhere down the line your financial situation changes. For example, you start earning significantly more. Without any agreement to the contrary, your spouse would have the claim to the additional money as it was received by a married person – you – during marriage – and would be considered ‘’marital property to be divided equitably in the event of a divorce.
However, recently, in a case named Ansin v. Craven – Ansin, Massachusetts Supreme Judicial Court, via a decision authored by a departing Chief Justice Margaret Marshall, announced that ‘’a marital relationship need not vitiate contractual rights between the parties.’’ 457 Mass. 283. (July 16, 2010). In other words, parties can be married and still have a right to contract with each other just like any unrelated parties do.
One might argue that a marital agreement is different from your typical contract negotiated at arm’s length because of a highly personal, confidential and intimate nature of a relationship between the contracting parties. This is exactly the kind of argument the wife in the Ansin case made. She argued that marital agreements, by their very nature, are ‘’innately coercive’’, ‘’usually’’ arise when a marriage is already failing and may ‘’encourage’’ divorce (quoting the text of the decision).
For example, it is quite possible to imagine one spouse, usually the one who is the primary source of wealth in the family, using the marital agreement as a tactic to deprive the other spouse of much of the marital property in the event of a divorce. The ‘’wealthy’’ spouse may say something like, ‘’Here is an agreement my lawyer drafted. If you want to stay married, you better sign it.’’ The court, while agreeing in principle that circumstances surrounding marital contracts certainly provide ample opportunities for threat, coercion and duress, stated that this can be avoided by having a Probate and Family Court judge review and scrutinize each agreement.