Prenuptial and postnuptial agreements guard against disputes should circumstances prevent you and your spouse from making joint decisions or expressing your intentions. A prenuptial agreement is a contract in which intended spouses agree upon how property would be divided in the event of a divorce, separation, or death of one of the spouses. A postnuptial agreement is the same type of agreement, entered into after marriage.
The Massachusetts Alimony Reform Act of 2011 recently went into effect and caused significant changes to the amount and duration of alimony available without written findings by the court.
Frequently asked questions
Why should I get a prenuptial agreement?
A prenuptial agreement protects your financial stability and the rights of your intended beneficiaries. Settling important financial decisions as you prepare to marry allows you and your intended spouse to enter into the marriage confidently, guarding against future pain, uncertainty, and the cost of legal battles that could result from your failure to document your intentions.
Do I need a prenuptial agreement even if I’m not rich and I don’t have extensive property?
Yes. While many people believe that prenuptial agreements are only for people who have high net worth entering into marriage, prenuptial agreements provide solutions to a wide range of financial concerns.
- Protect wealth accumulated during the marriage. It is the wealth and property acquired during the marriage that is at the highest risk of being divided by the court. Even if you don’t have much money or property now, if you anticipate financial success during your marriage, you should get a prenuptial agreement.
- Shield you from debt that your spouse brings into the marriage. This is especially important for couples with student loans or credit card debt, as well as where one spouse has child support or alimony obligations from a prior marriage.
- Protect your business. If you own a business in whole or in part, a prenuptial agreement can prevent the possibility of the court awarding decision-making power or rights to income to the non-owner spouse.
- Account for one spouse supporting the other for a period of time, for instance if you pay your spouse’s tuition or support your spouse while he or she is in school.
- Disclaim rights to earnings as a result of a degree or training that one spouse completed during the marriage.
- Account for the homemaker spouse’s contributions. Spouses who have left the workforce to raise children are especially vulnerable to becoming impoverished after divorce. On the other hand, breadwinner spouses can be ordered to pay so much alimony that they cannot afford to retire. If one spouse’s contributions to the marriage cannot be easily defined in monetary terms, it is in both parties’ best interests to ensure their financial security with a prenuptial agreement.
- Protect inheritance rights and exclude property from division. If you stand to inherit or you own property that should not be subject to division, you should have a prenuptial agreement acknowledging those intentions.
Do I need an attorney? Can my intended spouse and I use the same attorney?
For your prenuptial or postnuptial agreement to have the best chance of withstanding a challenge, each party should have independent counsel.
Without independent counsel, your spouse or your spouse’s beneficiaries could claim that he or she was pressured, misled, unclear as to the terms of the agreement, or unclear as to the role of any attorney involved. A properly negotiated and executed prenuptial agreement can save you extensive litigation costs or property loss should you ever need to enforce the agreement.
How does the court decide if a prenuptial agreement is enforceable?
The court considers factors including:
- Was there full disclosure by the parties? If you hide assets or liabilities, the court is likely to invalidate the agreement.
- Was the agreement fair and reasonable at the time it was made? The court will avoid enforcing agreements that leave one spouse destitute. Your attorney will advise you regarding what terms the court is likely to reject.
- Is the agreement fair and reasonable at the time of enforcement? The evaluation of the agreement at the time of enforcement is sometimes called the “second look”.
Obtaining separate counsel for each party greatly increases the likelihood of the court finding the necessary factors present.
Can we change the terms of the prenuptial agreement or cancel it later?
A prenuptial agreement can be modified or cancelled at a later time by agreement of the parties. This is quite common as circumstances change during the marriage, particularly if one spouse leaves the workforce to raise children, your financial situation changes substantially, or a change in the law (such as the Massachusetts Alimony Reform Act of 2011) affects your rights to property or financial support.
To discuss further how a prenuptial or postnuptial agreement can protect you, call (978) 704-9223 or email Lance Law LLC to schedule a consultation.