Congratulations! You’ve found your life partner, and you’re engaged. The last thing you want to think about is what will happen if your marriage ends. Nonetheless, it may be worthwhile to consider a prenuptial agreement, even if you aren’t one of the rich and famous.
A prenup, to use the vernacular, defines how all or some of each person’s assets will be divided in the event of divorce or death. It’s an uncomfortable topic to raise, but it can be an essential conversation, depending on your circumstances:
- You’re marrying later in life and may have already accumulated substantial assets prior to marriage, including but not limited to an interest in business entities.
- You’ve been married before and wish certain assets to be protected for your children from your prior marriage in the event of divorce or death.
- You’ve received or expect to receive an inheritance from family that you wish to protect in the event of divorce or death.
Benefits of a Prenuptial Agreement
A well-drafted agreement can ensure that the assets you bring to the marriage will remain yours if the marriage ends. If you have assets you wish to protect in your divorce, it is advisable to define those details in a prenup.
A prenuptial agreement may also include waivers of alimony. If you both agree in a prenup that neither of you will seek or receive alimony, a judge is likely to honor the agreement, so long as it does not leave either of you without adequate financial support.
Note that a prenup cannot be used to waive or eliminate child support. Just as parents cannot waive future child support as part of a divorce agreement, they cannot do so before marriage, either. That’s because child custody decisions are always based on the best interests of the child at the time of the divorce.
How Prenuptial Agreements are Enforced in Massachusetts
A prenuptial agreement that is duly signed and executed before marriage can be enforced in Massachusetts, but a prenuptial agreement can be challenged and not enforced if it is poorly drafted or fails to comply with requirements under Massachusetts law. To be sure your prenup is bullet-proof, each of you should hire an attorney to advise you of your rights under the agreement. You should be prepared to disclose all your income, assets, and debts; full and fair disclosure of assets is essential.
When determining whether a prenuptial agreement can be enforced, Massachusetts courts employ a “two look” test. The prenup must be “fair and reasonable”— not only when it is executed, but also later, if one of the parties contests the prenup when it is subject to enforcement.
The “first look” examines:
- Whether each of you fully and accurately disclosed your respective assets, income, and liabilities when the agreement was executed;
- Whether one of you was pressured into signing the agreement; and
- Whether each of you had the opportunity to obtain independent legal advice.
If you signed a prenup shortly before marrying, the contract will be scrutinized even more carefully to ensure that each of you had sufficient time to review the agreement, understood the agreement, and what rights (if any) you surrendered by signing the agreement.
The “second look,” occurs at the time of enforcement. The courts will examine whether enforcing the agreement would leave one of the spouses impoverished and unable to support themself, while the other spouse retains all or nearly all of the couple’s assets and income.
If you are considering presenting your fiancé with a prenuptial agreement, or if you are presented with a prenup by your significant other, please contact our family law attorneys at Mountain Dearborn before you draft or sign anything. We will be pleased to help you commence your marriage on firm legal footing.
Image: Everton Vila
