Thinking about tying the knot in Boston soon? Congrats! On both the engagement and the foresight to consider a prenuptial agreement (which is probably why you clicked on this article). A prenuptial agreement or premarital agreement is a contract between two prospective spouses who are planning to be married. These agreements are a way for both parties to determine how their property and assets can be managed ahead of time, if the marriage ends in divorce or the death of a spouse. But before entering into a Boston prenup, it is important that both parties consider consulting with a separate licensed attorney (i.e., a Boston prenup attorney) to review the prenup agreement in order to ensure the contract is fair and enforceable. So, without further ado, let’s chat about what you need to know about Boston prenups and prenup attorneys.
What is the UPAA/UPMAA?
In 1983, the Uniform Premarital Act was drafted with hopes to promote uniformity and continuity of the enforcement of Prenuptial Agreements (Premarital Agreements, Antenuptial Agreements) across the States. In 2012, it was revised and called the Uniform Premarital and Marital Agreements Act. Currently, twenty-eight (28) States have adopted one of these standards. Massachusetts is not one of the twenty-eight states that have adopted the UPAA/UPMAA standards. However, they do allow prenuptial agreements as outlined in MGL Chapter 209 §25.
Who might benefit from a premarital agreement in Boston?
Premarital agreements are not just for wealthy individuals entering into marriage. Couples who might consider getting a premarital agreement have diverse backgrounds and situations. Having a premarital agreement can ensure that assets and property are divided the way the couple intends, rather than leaving the decision to the courts. Couples who have previously been married, have children from a previous relationship, and/or have separate property or businesses may benefit from a prenup to ensure their assets are protected for their kids or business. In addition, anyone who simply wants to get on the same page as their partner about things like money management, debt, and retirement can also benefit from a prenup.
Should I choose Massachusetts as my prenup state?
“Choice of law” is the term for the clause that dictates what state governs your prenuptial agreement should you ever seek to enforce it. So, which state do you choose? A consideration to keep in mind is residency. Because Massachusetts is not part of the UPAA/UPMAA, it is important to consider where you plan on residing in the future. A prenuptial agreement signed in Massachusetts is not necessarily enforceable outside of the State if you move after marriage. If you think you may plan to move outside of Massachusetts after marriage, it is important that you consult with an attorney in the potential state or states you may reside in and draft a premarital agreement that has provisions that also conform to that State’s requirements.
What can a premarital agreement contain?
A premarital agreement can specify what happens to property and assets in the event of the death of a spouse or divorce. In Massachusetts, an agreement can specify, for example:
- Maintaining separate property
- Responsibility of separate debt
- Maintaining separate income
- Retaining inheritance and gifts
- Determining the division of future earnings, assets, investments, property (marital property)
- Waiving certain rights (i.e. inheritance, will, alimony)
- “Sunset Clause” or expiration of agreement
All of this planned beforehand can save time and money rather than leaving it to the courts to decide.
What makes a premarital agreement enforceable in Boston?
In Massachusetts, premarital agreements are governed by Mass. General Law Chapter 209 §25 and by case law, unlike states that follow the UPAA/UPMAA Guidelines. In order for an Agreement to be enforceable, it must be enacted before marriage. The agreement also must be in writing and signed by both parties and notarized in the State of Massachusetts. The agreement must be signed voluntarily, and both parties must fully disclose all assets and debts (full financial disclosure).
Although it is not required in Massachusetts, it is highly recommended that both parties review with separate attorneys to prevent a conflict of interest (No, you can’t share a lawyer). This all should be done within a “reasonable” amount of time before the wedding, so there is no later recourse for one member of the party to claim that he or she signed under duress, or was coerced into signing the agreement.
What makes a premarital agreement unenforceable?
A Premarital Agreement is unenforceable in Massachusetts if it includes provisions that violate Massachusetts Law. Agreements are also unenforceable if they include incentives for divorce, are deceptive in nature, or have unfair clauses. Unfair clauses are those, for example, that overly favor one party or something ridiculous like putting demands on one party to get cosmetic surgery or lose weight. Premarital agreements in Massachusetts may not include provisions for child custody and child support.
Is a lawyer required for a valid prenup in Boston?
It’s not necessarily required, but it can help increase the chances of enforceability. For example, in the Massachusetts DeMatteo (2002) case, the court explained that when determining whether a prenup should be enforced, a court may consider factors such as whether each party was represented by counsel, the adequacy of the time to review the agreement, the spouses’ understanding of the terms of the agreement and their effect, and a party’s understanding of his or her rights in the absence of an agreement. This means that while it’s not a strict requirement in creating a valid prenup in Mass, it can certainly help the argument that the agreement was entered into with knowledge of their rights.
What is the “Second Look Test” in Massachusetts?
In certain instances, a premarital agreement may be deemed unenforceable if circumstances, such as finances drastically change through the course of a marriage, and the premarital agreement would leave one spouse unable to support himself or herself. The agreements must be “fair and reasonable” at the time they are enforced, just as at the time they are executed.
This rule comes from the Massachusetts case known as DeMatteo v. DeMatteo, (2002). After eight years of marriage, Mr. and Mrs. DeMatteo filed for divorce. They had filed a premarital agreement at Mr. DeMatteo’s request because he had a large share of personal assets. In the agreement, Mrs. DeMatteo waived many of her rights to things she may have been entitled to in a divorce, such as spousal support. At first, the courts deemed the agreement unenforceable because of the financial gap. However, after the “second look test,” the court ruled that the agreement was, in fact, enforceable because Mrs. Dematteo was fully informed of her husband’s finances at the time of signing, and the agreement left her with “fair and reasonable” means to provide for herself.
Notable cases in Massachusetts with regard to premarital agreements
Let’s take a look at a few notable cases in Massachusetts that help carve out how courts view and enforce prenuptial agreements in the state:
- Rosenberg v. Lipnick et. al: “Til death do we part”: Mr. and Mrs. Rosenberg had signed a Premarital Agreement where Mrs. Rosenberg waived her rights to claim her husband’s estate and her widow’s rights should he pass. Mr. Rosenberg ultimately passed away, and Mrs. Rosenberg attempted to get the Premarital Agreement invalidated. The Massachusetts courts however, help up the agreement and Mrs. Rosenberg was not entitled to her share of Mr’ Rosenberg’s estate or her widows allowance.
- Austin v. Austin: Waiver of Alimony is enforceable after the “Second Look Test:” Mr. and Mrs. Austin had signed a Premarital Agreement in which Mrs. Austin waived her right to alimony. When the couple later divorced, the court originally invalidated that particular clause of the premarital agreement, but after applying the “Second Look Test,” ruled that the agreement was in fact enforceable because Mrs. Austin was able to provide for herself financially.
More Massachusetts terms and statutes to know
Here are some more legal terms and statutes to be aware of when creating a prenuptial agreement:
- Divorce (see MGL Section 201 §§2A-2B) There are two types of divorce in Massachusetts, “no-fault” and “at-fault” divorce. “No-fault” divorce is based on irreconcilable differences and the inability to repair the marriage, while in “at-fault” divorce, one party must prove the other party committed an act such as adultery, abandonment, or abuse. In most cases, “at-fault” divorce cases are more costly and time-consuming.
- Marital Property is the debts and assets acquired by a couple beginning at the time of marriage
- Separate Property is individual property. In Massachusetts, some separate property may become marital property if proper steps are not taken to ensure the property remains separate, such as drafting a Premarital Agreement.
- Alimony (see MGL Ch 208 §35) is an amount of money ordered by the courts from one spouse to pay the other spouse. The amount and duration of alimony is typically determined by several factors such as the income of the higher-earning spouse, the length of the marriage, and the earning potential of the spouse receiving alimony.
The bottom line on Boston prenuptial agreement attorneys
As you can see, a Boston prenuptial agreement requires both parties to enter the agreement voluntarily, with full financial disclosure, and an agreement that is reasonably fair. In addition, Massachusetts courts will conduct a second look test, which means they will make sure the agreement is reasonable at the time of the divorce, as well as at the time the prenup was signed. Hiring a lawyer in Massachusetts is not required, but highly recommended to increase the enforceability of your prenuptial agreement. And make sure to avoid those unenforceable clauses, like overly one-sided terms or weight gain clauses. Easy peasy! Now, go on and get that prenup secured so you can go back to focusing on wedding planning.
Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at Hello@Helloprenup.com.
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