Prenuptial Agreements

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In Massachusetts, you can make a contract on how to deal with your assets when you marry.

The state has already given you a prenuptial agreement: the divorce laws!  BUT but it may not be what you want.

·   Massachusetts does not divide the assets in half. 

·  Massachusetts does not automatically permit one spouse to keep the property that she brought to the marriage.  Instead, there is a laundry list of factors to consider in determining what is equitable.  

If you don't like the possibility of a judge deciding how your assets will be divided if you divorce, then consider a prenup.

The agreement has to meet these requirements:

·  The parties have to disclose financial information to each other.

·  The agreement has to be fair and reasonable when they enter it.

·  There has to be enough time between when they sign the agreement and when they marry to overcome the suggestion of coercion.

·  The agreement has to be fair and reasonable when either party seeks to enforce it, and it cannot make one party a public charge.

Instead of the one-size-fits-all arrangement from the statutes, your prenuptial agreement is tailored to your circumstances:

·  It can separate specific assets as the exclusive property of one spouse.

·  It can have special provisions for division of assets if there are children born or adopted during the marriage.

·  It can have estate planning provisions for one or both spouses.

·  It can have a sunset provision – if the marriage lasts more than a certain number of years, then the agreement evaporates.

My fiancée wants me to sign a prenup.  That means she plans to divorce me, so why are we getting married?

A prenuptial agreement means that your fiancée takes your relationship seriously, and wants to keep money issues from disrupting your marital harmony.

Sometimes a prenup to address concerns outside of the marriage.  

• Parents may urge you to have a prenup, and you would rather say yes than argue with them.  
• You have children, even adult children, from previous relationships.  A prenup can help the children realize that their parent’s marriage plans do not jeopardize their inheritances.
• One of you brings wealth to the marriage, the other brings talents, and you want to value each type of contribution.

We have seen couples negotiate and sign prenups, which they then throw in a drawer and never look at again.  So why bother?  Even if there is no one outside the couple who is lobbying for a prenup, the process of learning what the divorce laws provide, and how divorce would divide assets can help couples choose a solid understanding of the financial aspects of marriage.

Is a post-nuptial agreement legal in Massachusetts?  Yes!

If a couple wants to move off the default of Massachusetts divorce laws after they marry, then a post-nuptial agreement is a good choice.

There are five factors to consider:

·  ADVICE: Did each spouse have the opportunity for independent counsel?

·  NO PRESSURE: Was there fraud or coercion in getting consent to the agreement?

·  NO HIDING: Were all assets fully disclosed prior to signing the agreement?

·  KNOWING WAIVER: Did each spouse knowingly waive rights to property sharing and support?

·  FAIRNESS: Is the agreement fair and reasonable?

Whether before or after getting married, couples in Massachusetts are free to contract with each other on how a divorce will affect the division of their assets.  

Just remember: if you want the benefits of being married, you must be legally married.  Time alone will not help.  There is no common-law marriage in Massachusetts!