Boston Prenup Attorney

Aug 26, 2023 | Massachusetts Prenuptial Agreements

A Prenuptial Agreement or Premarital Agreement is a contract between two prospective parties that are planning to be married. The agreement becomes effective upon marriage.  Prenuptial 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 death of a spouse.  Before entering into a Prenuptial Agreement, it is important that both parties consult with a separate licensed attorney(Boston Prenup Attorney)) to review the Agreement in order to ensure the Agreement is fair and enforceable.  

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. Massachusetts is an “equitable distribution” state, and the courts decide what is “equal” between parties in the event of divorce rather than just splitting assets between parties..  The courts, however,tend to honor a Premarital Agreement  if one has been written.  Couples who have previously been married, have children from a previous relationship, and/or have separate property or businesses may benefit from a Premarital Agreement.

“Choice of Law”

 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 Premarital 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 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 byMass. 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 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 It is recommended that the Premarital Agreement be reviewed with separate attorneys to prevent conflict of interest.   This all should be done within leaving 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 put 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.

“The Second Look Test”

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.

Notable Cases in Massachusetts with regards to Premarital Agreements

DeMatteo v DeMatteo-the “Second Look Test”

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 has 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 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.

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 widows 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.

Massachusetts Terms and Statutes

  • 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 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.

 

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