When we think of prenuptial agreements, we usually imagine millionaires or billionaires asking or requiring their prospective spouses to sign an agreement that would limit their share of their estate in the event of a divorce. But prenuptials can also make sense for you if this is a second or subsequent marriage and you have children from another marriage or relationship, and/or you have substantial assets, even if it is not in the millions. However, a prenuptial must be drafted carefully and be reasonable in its terms or a Massachusetts court may void it if it is challenged.

Considering a Prenuptial Agreement?

If you or both you and your potential spouse have your own assets, then a prenuptial might be a sound idea. The main purpose of a prenuptial is to address financial concerns and to specify what your financial assets are and your responsibilities. In the event of divorce or death, the agreement can set forth how your assets are to be distributed and in what amount, and which party is to be responsible for certain debt obligations. It can also clarify if spousal maintenance will be given to a spouse and for how long. Another benefit of a prenuptial is that by agreeing to how your property will be distributed, you have eliminated it as an issue in a contested divorce.

Some situations where you might seriously consider a prenuptial agreement include:

  • You wish to specify which assets are separate and which will be marital (obtained or accumulated during your upcoming marriage)
  • If you have pre-marital obligations pertaining to a former marriage in which marital assets that will be used to pay these obligations, what consideration will be made regarding these marital assets?
  • You plan to keep residing in a home you owned prior to this marriage—if there is a mortgage and marital assets are used to pay it, will the other spouse receive a credit upon divorce?
  • If there are adult children from a prior marriage you are continuing to support with marital assets, will the other spouse be given a credit?

If considering a prenuptial agreement, discuss it with your spouse well before the wedding. A basic element of the agreement is that both parties must be entirely forthcoming about their assets and debts. If the agreement is challenged and it is revealed that the spouse with the more substantial assets hid some valuable property or income source, then a court is likely to invalidate the agreement.

A prenuptial is generally valid as of the day of marriage, although you can include a provision that it takes effect at a subsequent time or even terminates after a few years. Otherwise, it lasts indefinitely.

Elements in a Prenuptial Agreement

You should limit your prenuptial to financial issues. Attempting to establish child custody, visitation, child support, or limits on how one party is to conduct him or herself may not be upheld by the courts.

To ensure a valid agreement, consider these important elements:

  • Fully disclose all financial information including assets, income, debts, real property, valuable personal property, and business interests and have these appraised fairly—if a party has substantially undervalued property, the entire agreement may be unenforceable
  • Put the agreement in writing and have it notarized
  • Have a competent Boston divorce attorney draft the agreement but have an independent attorney representing one of the spouses review it–then have both legal counsel affix their signatures to the document or attach separate affidavits containing an acknowledgement that legal counsel has reviewed (it is not legally required to have two attorneys review the agreement but it can eliminate an allegation of coercion)
  • Be sure the agreement has been drafted and signed a reasonable time before the wedding
  • Eliminate the possibility that one party may allege coercion in signing it
  • Do not include lifestyle provisions such as a promise to not gain more than 25 pounds, to not engage in infidelity, to refrain from alcohol, etc.
  • Avoid any provision limiting or waiving child support payments
  • If you have pre-marital obligations to a former spouse or minor children, address what consideration will be given, if any, for those obligations you paid out using marital assets in the event you divorce or legally separate

If the prenup is challenged, a court will look to see if there was full and fair disclosure of all financial information and if its terms were fair and reasonable when entered into. It will also see if it is fair and reasonable at the time a spouse seeks to enforce it.  For instance, if a spouse is left indigent or at least without sufficient resources or employment, then a court may well consider the agreement void or unenforceable, especially if the other spouse’s financial condition is the exact opposite.

Retain Boston Divorce Lawyer Heather M. Ward

Should you and your fiancée be considering a prenuptial agreement or have questions about one, call Heather M. Ward at (617) 903-8955. Ms. Ward is an experienced Boston divorce lawyer who can advise and counsel you regarding these agreements and how to ensure that they will be enforceable in case of divorce.