Addressing the elephant in the room: Prenups

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.

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