Prenuptial Agreement Lawyer

If you are getting married, then congratulations! Planning for and anticipating the wedding and thinking of the years you will be together is exciting as well as daunting, to be sure. But have you considered drafting a prenuptial agreement? Although the idea of a written contract between you and your future spouse regarding the disposition of property in the event of divorce or death may appear cold-hearted and certainly less than romantic, it is actually a sound idea in many cases.

Why Have a Prenup?

Most people are aware of prenups in the context of celebrity marriages where the spouse of a wealthy entertainer receives only a small portion of the estate and sues to have the prenup invalidated. But prenups are for any couple entering marriage for a variety or reasons:

1. If you have children from a prior marriage, you want to ensure that they receive a fair portion of your separate estate upon your passing. Separate assets are distinguished from marital, which are assets acquired and accumulated during the marriage. Without a prenup, it is possible the surviving spouse would receive a larger share of the estate and your children are left with far less than you intended.
2. It clarifies financial rights and obligations. For instance, if you both have substantial assets going into the marriage, you may want to clarify and separate your individual assets and business interests. You should also clarify who is responsible for certain debts so that neither of you are responsible for the other’s debts upon divorce or death.
3. It avoids a property fight upon divorce. You may specify that certain property will remain yours or your spouse’s upon divorce, such as certain valuable personal or real property.
4. Determines how family business interests are handled and controlled. Either of you may have had a business before the marriage or one that was created during it. You can agree on how the business interests are to be handled including sale of the business, stocks, or other disposition if you divorce.

Regarding property distribution on divorce, states are either community property states, where the marital assets are divided on a 50/50 basis, or based on equitable distribution. Massachusetts is the latter, meaning that the parties’ separate and marital assets are divided according to the economic equities involved so that one spouse may receive more than 50% of the marital estate. A valid and fair prenuptial agreement, though, can divide your property according to your mutual wishes.

What Can be in a Prenup?

Prenups can contain nearly anything regarding financial matters with some limitations. You can include:

• How inheritances during the marriage will be handled
• What property the surviving spouse is entitled to if one predeceases the other
• How assets acquired during the marriage are to be handled
• Penalties for infidelity during the marriage
• How spousal maintenance will be addressed

Courts will not necessarily accept your prenuptial agreement in every instance. If one spouse is economically disadvantaged in relation to the other or is incapable of earning a suitable living and had waived or accepted a small sum as alimony, it is likely the court may invalidate this provision of the prenup. A court will look at the economic circumstances that existed when the prenup was entered into. If the agreement is very one-sided and unfair at that time, it will probably award spousal maintenance based on the usual factors a court considers without regard to the prenup provisions.

Further, although you and your spouse can certainly agree on custody arrangements for the children, the court will not allow you to determine child support payments that deviate from the guidelines absent specific justification and need for the support being less or more than what is indicated.

Requirements for a Valid Prenup

If either spouse contests the validity or fairness of a prenup, the court will examine the provisions and the economic circumstances of the parties at the time the prenup was entered into.

All parties are required to fully disclose their assets and obligations before signing. A court will look at the following factors in a prenup dispute:

1. Is the prenup language clear and understandable to the average person?
2. Did the parties fully disclose all assets and obligations or did one party hide certain assets or income streams?
3. Did the parties have separate attorneys review the agreement?
4. How much time elapsed between the signing of the agreement and the date of the wedding?
5. What was the disparity in the economic circumstances of each party at the time the agreement was signed?
6. What are the economic circumstances of each party at the time of divorce?

Even if the parties were relatively equal in terms of separate assets when the agreement was signed, one spouse may have agreed to give up a career or educational opportunity to care for children or the household and so that the other could pursue a career or degree. After several years, the at-home spouse may not have had the opportunity to develop vocational skills and has no advanced degree, thus resulting in diminished earning capacity. At the time of divorce, he or she is left with few assets because of the prenup. In such cases, a court may consider awarding spousal maintenance and/or divide the assets on what it determines is an equitable basis, ignoring the prenup provisions.

Having a separate Boston prenup lawyer for each spouse to review the agreement is also an important consideration. If only one attorney was involved, then the court may scrutinize the agreement more closely and decide that the unrepresented spouse was unfairly treated because he or she did not fully understand or appreciate the consequences of the provisions. If one Boston prenup lawyer represented both parties, this is likely a conflict of interest and the courts may be just as inclined to invalidate the prenup.

In addition, an agreement that appears unfair and which was signed in close proximity to the wedding is suspect since the party had little time to review and understand the prenup and may have been under pressure or duress to get it signed.

Modifications

Prenups are not set in stone. If you and your spouse both agree to changes and have those changes reviewed and signed off by your respective attorneys, then the changes are far more likely to be sustained by a court in case of a dispute.

You and your spouse can also terminate the prenup at any time upon mutual agreement. You can also draft a postnuptial agreement. If you do, then you both should certainly have separate attorneys draft and/or review it for you.

Consult Boston Prenup Lawyer Heather M. Ward

Heather Ward is a Boston family law attorney who handles all types of family law matters including divorce, child custody and support, paternity, parental rights, property disputes, domestic violence issues, spousal maintenance, and prenuptial agreements.

You need an experienced Boston prenup lawyer to properly handle and advise you if you and your spouse wish to draft a prenup or modify an existing one. Call attorney Heather M. Ward today at (617) 903-8955 for a consultation.