Prenuptial Agreements
A prenuptial agreement is a contract entered into by both parties prior to marriage,providing clarification of property and financial rights and obligations of each spouse. Its
purpose is to protect assets of the individuals gained prior to and/or during the marriage
in the event of divorce.
The agreement can address a multitude of issues, but most commonly includes
provisions for division of property and for spousal support (alimony).
Prenuptial agreements cannot regulate issues relating to the children of the marriage
such as custody, visitation, and child support.
A prenuptial agreement is a valuable tool in preventing disputes over division of property
in the event of divorce. They are recognized and enforced in the Commonwealth of
Massachusetts, provided that they are drafted and executed properly. Both parties
should have lawyers represent them to ensure that the agreement itself is legally sound,
but just as important, when a judge is asked to enforce a prenuptial agreement, one of
the factors in his or her decision is whether each party had independent legal
representation.
Factors considered in determining the validity of a Prenuptial Agreement:
Must be in writing
Must be signed voluntarily by both parties, before the marriage
Must provide full disclosure of each partys assets and income
The terms of the agreement must be fair and reasonable both at the time of
execution and at the time of divorce
Each party had an opportunity to obtain separate legal counsel of his or her own
choosing
There was no fraud or coercion in obtaining the agreement
In Massachusetts, Postnuptial agreements are now recognized and legally enforceable.
A postnuptial agreement, or postnup, is just like a prenup except that it is executed
during the marriage, not prior to. They are often used by couples who meant to create a
prenup but never got around to it prior to their wedding. Another scenario in which a
postnup may be used is when a couple has separated and then reconciled. Realizing
that they are currently on good terms but that their attempt to save the marriage may
ultimately fail, they create a postnup agreement, settling issues of how to divide assets.
It is easier, faster, and much less expensive to create a postnup agreement than to fight
about financial issues in the midst of a divorce proceeding.
In Massachusetts, Domestic Partners may enter into a Cohabitation Agreement which is
a written contract between two parties who have chosen to live together.
