What is a prenuptial agreement?

In Massachusetts, you are free to contract with your fiancé about what your marital rights are in the event of death or divorce.   Effectively this means prior to marriage you and your spouse plan out what happens if you divorce or die.  While this forces a happy couple to have difficult discussions prior to marriage, it can be a positive experience for the couple. 

Prenuptial agreements are popular for individuals who are remarrying to preserve an inheritance for their children of a previous relationship.  They are also useful in preserving family wealth or wealth accumulated prior to the marriage.  However, prenuptial agreements are also beneficial for practical couples who want to discuss their financial expectations.

Can my fiancé and I hire one lawyer to draft the prenuptial agreement?

When a party signs a prenuptial agreement, he or she is waiving certain legal rights.  Each party should have the opportunity to consult with a lawyer to understand how the prenuptial agreement will impact his or her rights in the event of divorce or death during the marriage. 

If you choose to hire an attorney to draft the prenuptial agreement, that attorney cannot also represent your fiancée as it would be a conflict of interest.   Best practice would be for your fiancé to hire a lawyer to independently review the prenuptial agreement to ensure it is fair and reasonable and conforms with your fiancé’s goals and understanding.   

Massachusetts does not require that you and your fiancé be represented by attorneys; however, it is strongly advisable to do so to increase the likelihood that your prenuptial agreement will be enforced. 

Wait, could my prenuptial agreement not be enforced?

Whether a prenuptial agreement is enforced is determined by a two-step analysis.  First, the court looks at whether the agreement was fair and reasonable at the time it was signed.  The court considers a series of factors to determine what is fair and reasonable, including how soon the agreement was signed to the date of marriage.  A word of caution is to make sure you begin having discussions with your fiancé about creating a prenuptial agreement as early as possible.  The closer to the date of marriage, the greater risk you take in the agreement not being enforced.

Second, the court looks at whether the agreement was ‘conscionable’ at the time of enforcement, meaning is each spouse left with adequate means and employment to support himself or herself after divorce.   

Massachusetts also requires that the parties make a full and truthful disclosure of their financial situation before signing.  Make sure you allow for ample time to gather and exchange financial information with your fiancé.

If you are considering a prenuptial agreement for your upcoming marriage, call Ryan Faenza Carey as soon as possible.

Hopefully, the last words you will ever speak will be your wishes in your Last Will and Testament after you have left this earth. However, if you don’t leave a Will, did you know that the law will decide who gets your money and property? 

And if you aren’t married and don’t have children or parents, whatever you have may go to distant relatives you haven’t seen or heard from in years, or whom you may have never met. 

A recent Boston Globe article depicted such a sad situation where someone that died neglected to “speak” their last words in a Will, creating unintended results to the detriment of his loving step family with whom he was very close for decades.

It’s your money. It’s your property. You earned it. Make sure you decide where you want it to go.  Do a Will and have the last words  you ever speak be your words, and not a legal statute.

Think that dividing assets in divorce is easy and anyone can do it?  Think again.  You may be risking thousands or tens of thousands of dollars if you forget to dot the “i’s” and cross the  “t’s”.  A recent Boston Globe article highlighted the Court case of former Patriots running back Mosi Tatupu. His case underscores the importance of careful and timely drafting and consistency in dividing assets in a divorce. It also illustrates how important it is to fully understand the terms of your settlement.

What Mosi Tatupu’s widow thought she was getting from her former husband’s NFL pension, and what she ultimately got, were two different things. The provisions of the parties’ divorce Separation Agreement, and the court-submitted document dividing the pension (DRO) were inconsistent. After Mosi’s death, his former wife sought to enforce terms of a DRO to divide the pension, and a federal Court in Massachusetts denied her claim.

The division of pensions and other assets in a divorce is complex and should be handled by an experienced professional.  It is essential that you know and understand your rights, as property division provisions are usually final.  Insist on having your rights explained to you and leave nothing to chance; it is unlikely at best that problems with property division can be rectified after the fact. 

We at Ryan Faenza Carey have seen first hand the difficulties and problems that arise in cases such as Mosi’s, among others.  These difficulties and problems can mean the loss of thousands or even millions of dollars down the road.  Consult with one of our experienced professionals.

A divorce can feel like a liberating experience once legal proceedings are finalized. Many people leave our office for the last time with the feeling that the past is behind them, and nothing but opportunities for the future await. They don’t expect to have to deal with any more court or legal proceedings. 

Nevertheless, here are some post-divorce considerations we share with all of our clients to ensure they are avoiding additional legal headaches down the road:

Don’t Forget your Agreement Terms:

It is good practice to periodically read through your Agreement or Judgment after the divorce to carry out the terms of the divorce. Typically, parties forget some of the terms of the final orders. There are probably provisions concerning splitting up the assets, who takes the dependent exemptions for the children, life insurance you may have to establish or verify, provisions regarding payment of uninsured medical expenses for the children, or other things to be done to carry out the agreement reached.

Make sure you’re legally divorced before remarrying

Be sure to wait until the Judgment of Divorce Absolute—the final judgment—before you remarry. This is the formal document that recognizes you as legally single in the eyes of the law.

Consider a Prenuptial for the next one

If you do remarry, a prenuptial agreement can save you a lot of headache by determining in advance what should happen if your subsequent remarriage ends by divorce or death.

Be aware of your right to modification

If circumstances of the parties or children change, you may want to explore a modification– a  change in the Court orders—typically these changes concern support, parenting schedule, medical insurance, life insurance triggered by changes in income, job, or changes in parenting schedules.

You may have to involve the court if orders aren’t followed

If your former spouse doesn’t obey the Court orders, you may need to explore a contempt proceeding—to enforce the Court orders.  Typically this involves failure to divide pensions or retirements, failure to pay support, etc.

Laws change- and this can affect your agreement

Sometimes laws change and can have retroactive effect.  Periodically explore whether or not any changes in the laws may affect you.

You should plan ahead

Put together a post-divorce estate plan—to insure that your wishes are carried out the way you want them to be carried out in the event of your death.  

Get creative with social security

When it is time to consider collecting social security, remember that your previous marriage may allow you considerable options of collecting under your work record, or that of your former spouse, or a combination of both, in order to best maximize your benefits. 

Federal regulations mandate each state review child support guidelines at least every four years. In September 2017, Massachusetts enacted new child support guidelines after a review. However, the Trial Court has worked to alleviate several issues outstanding from these revised guidelines by amending the 2017 guidelines, as well as completely overhauling the child support guidelines worksheet in June 2018.

Here’s a breakdown of what has changed, and the still-remaining issues that could be addressed in future amendments.

What’s New?

The 2018 child support guidelines give a credit for the amount of medical, dental and/or vision insurance or child care costs to the party who pays these expenses (rather than just a deduction from their total income).

Prior to the June 2018 amendment, there was a problem of “double counting” the credit that a party receives for paying insurance or child care, in a shared physical custody arrangement.

Prior to the June 2018 amendment, to calculate child support for a 50/50 parenting plan, the court calculated the guidelines with each parent as the custodial parent and the net amount would become the child support payment. The challenge with running the 2017 guidelines twice was that the party who pays the insurance or child care would receive twice the credit.

The June 2018 child support guidelines alleviate the necessity to run the child support guidelines twice, therefore preventing the issue of double counting any insurance or child care credit.

Child support calculated differently for families with children over the age of 18, and additional children under the age of 18.

The September 2017 child support guidelines reduced support orders for children over the age of 18. However, the chart included in the 2017 child support guidelines resulted in some puzzling results for any families of four or more children, where at least one of the children was over the age of 18, effectively awarding a greater amount of child support to a party who has custody of just three children under the age of 18, than to a party who has custody of three children under the age 18 and at least one child over the age of 18. The June 2018 child support guidelines cited, in a comment, an attempt to “fully preserve the increases in child support for additional younger children,” as reason for amending the way child support is calculated.

What Changes Could be Next?

While the new Massachusetts child support guidelines are utilized in the majority of custody cases, there are still several issues with the guidelines that have not been addressed by the Trial Court, causing some inconsistencies in rulings among Judges. These issues could be up for review next time the child support guidelines are amended.

  • The child support guidelines only calculates orders at a combined total income of $250,000 between the parties.   Any income above and beyond the combined $250,000 is to be addressed at the discretion of the Judge. The Trial Court has yet to address a uniform method for handling such an overage when calculating the child support guidelines.
  • The new child support guidelines deal with different custody arrangements: primary custody of all children to one parent, each parent having primary custody of one or more child, and joint physical custody of the children. However, there is no method set forth regarding how to calculate child support when the parties have multiple children and to which the parties share physical custody of one or more children, and one or the other of the parents has primary physical custody of at least one child. Under such a parenting plan, there are no instructions as to how to calculate the child support guidelines.
  • The child support guidelines remain silent on whether or not child support should be reduced if one or both parents are contributing toward college, and if so, what the formula should be for such a reduction.

If you are involved in any legal matters involving the issues of custody and child support it is important that you speak with an attorney who specializes in the field of domestic relations law to ensure that all of your rights are preserved. Contact us today so we can help.

To read the full Massachusetts Child Support Guidelines, visit https://www.mass.gov/info-details/child-support-guidelines.