Fair and Reasonable Prenuptials at the Time of Construction and at the Time that the Parties Decide to Divorce
Massachusetts is an “Equitable Division of Property” state. Any assets that an individual brings into a marriage and/or has earned or inherited during a marriage are subject to division in the event of divorce. Some couples decide to make an agreement either before marriage (Prenuptial) or after marriage (Postnuptial) which spells out how their assets will be divided in the event of divorce.In Massachusetts, couples may draft a Prenuptial Agreement before marriage that allows certain assets to remain with or become the property of one spouse in the event of divorce. A Prenuptial Agreement may deal with other issues, such as alimony, health insurance and life insurance.
- Prenuptial Agreements must be drafted under the guidance of an experienced attorney;
- The agreement must be fair and reasonable at the time it is constructed and at the time that the parties decide to divorce;
- Parties must enter the agreement freely and without coercion;
- Assets and liabilities of both parties must be disclosed in writing;
- Each party should be represented independently by counsel;
Important Issues to Keep in Mind
- A Prenuptial Agreement will not protect a spouse from the other party’s nursing home expenses;
- Rights and obligations with respect to children, child support, and visitation/custody cannot be included in a prenuptial agreement;
- A Prenuptial Agreement can protect future interests such as inheritances or gifts;
- A Prenuptial Agreement can help to ensure that assets from a previous marriage will be preserved so that they can be inherited by children and grandchildren of the previous marriage.
A Postnuptial Agreement is entered into by a couple who is already married. The Postnuptial Agreement, which is often drafted in an attempt to improve a marriage, details the settlement in the event of a divorce. It is different from a Separation Agreement, which is used to actually get a couple divorced.
- Postnuptial agreements must be free of coercion or fraud;
- Each party must have the opportunity to hire counsel;
- Each party must provide full and fair disclosure of finances, including current and reasonably anticipated assets, income and liabilities;
- The agreement must be substantively fair and reasonable at the time of execution and upon divorce.
- The burden of satisfying these criteria is on the spouse seeking to enforce the agreement.