A prenuptial agreement or “prenup” is a written contract between two people who intend to marry that provides for the division of assets, treatment of income, and payment or non-payment of alimony or spousal support should the marriage end in divorce.
Prenuptial agreements also known as antenuptial agreements are more common than you might think. If you are considering a prenuptial agreement, you should discuss your options with an experienced divorce lawyer and family law attorney. If you have signed a prenuptial agreement and are now considering divorce, you should also consult with a divorce and family law attorney to review the enforceability of the contract.
Prenuptial agreements can serve specific purposes that can help individuals regardless of their financial means, and are highly recommended for:
- elderly couples where at least one or both partners have been widowed or previously divorced
- couples where at least one or both partners were previously married, especially if there are children from prior marriages or relationships
- parties who own a business
Prenuptial Agreements often provide for the following in the event of divorce:
- the waiver of alimony or spousal support
- the amount of alimony or spousal support or other divorce related payments
- the identification of pre-marital or separate property that will not be part of the divorce
- waivers of interests in the other spouse’s probate estate or retirement benefits
Including agreements regarding child related issues such as child support, child custody, or child visitation is not recommended, as they are generally unenforceable during the subsequent divorce.
In Massachusetts, the Probate and Family Court (divorce court) typically weighs the following when determining if a prenuptial agreement is enforceable:
- whether each party to the agreement was represented by independent counsel.
- whether each party has made reasonable financial disclosures.
- whether one party signed the agreement under duress or coercion.
- whether the agreement was fair and reasonable at the time it was signed.
- whether the agreement remains fair and reasonable at the time of the divorce.
This is not an exhaustive list. The court may also consider other facts specific to your case. The Probate and Family Court is not likely to enforce an agreement that is unconscionable and would leave one party without the means to support themselves or their children.
It is much less stressful to discuss a prenuptial agreement before you set a date for your wedding. The closer you are to the date of the wedding, the more likely the Probate and Family Court may view the agreement as coerced.
If you wish to learn more about obtaining a prenuptial or antenuptial agreement in Massachusetts or have been approached by your partner to sign an agreement, please contact us at 617-431-8071 to schedule a consultation today.