Are you planning to get married? Are you wondering if you should get a prenuptial agreement before tying the knot? We’ve got some tips for getting started on your MA prenup.
What is a prenup?
A prenup is a formal agreement between two individuals who plan to get married. It’s a legal document listing all of the couple’s property, such as business ownership, assets, and debts, and outlines the ownership of such in the event of a divorce and details what they want to do with it. Prenups can cover what will happen with your assets, inheritances, debt, if alimony is warranted, and more in the event of a possible divorce.
Why get a prenup?
If you’re reading this, there’s a good chance that you’re already considering getting a prenuptial agreement. Good on you! Prenups can act as a tool for clear communication in a marriage and also prevent expensive and time-consuming legal battles by establishing clear guidelines for how property will be split up in case of divorce or death, whether alimony will be paid, and more.
Here are just a few more reasons people choose to get a prenup:
- Protecting their assets
- Avoiding their partner’s debt
- Protecting children from previous marriages
- Protecting their businesses
- Setting expectations with their soon-to-be spouse
- Avoiding lengthy divorce proceedings
- Avoiding a divorce judge from deciding their fate
Overriding MA default laws
A common reason couples choose to enter into prenups is to override the default divorce laws in their state. Why? Because if you don’t get a prenup, your state’s laws will dictate what happens to your property. For example, MA is an equitable distribution state, meaning without a prenup, the court will divide up the property equitably, not necessarily 50/50, and not necessarily in accordance with what was yours prior to the marriage. This means that the judges may (if they see fit) order a 40/60 split or 30/70 split (or any other combination of splits) based on the circumstances. They can also award certain property to a spouse to offset other distributions or income streams. A MA judge has the discretion to consider eighteen different factors in deciding how to split up your property, including:
- Length of the marriage,
- Conduct of the spouses during the marriage,
- Occupation of the spouses,
- Age and health of the spouses,
- Earning potential of the spouses,
- Amount and sources of income,
- Needs of each spouse,
- And more.
Without a prenup, when determining alimony in Massachusetts, family courts must first determine that one spouse has a true need for support, and then they must determine whether the other spouse has the means to pay. Just like with property division, the judge will rely on a list of factors to help decide on alimony regarding the type, duration, and amount. These factors include:
- Age and health of the parties,
- Length of marriage,
- Income of both spouses,
- Employability of both spouses,
- Ability to maintain the marital lifestyle,
- Contributions of both spouses to the marriage,
- Any loss of economic opportunities, such as job offers, due to the marriage,
- And any other relevant factors.
If you don’t want a judge using the above default state laws, then that should be your reason to get a prenup! Now, let’s talk about how to actually get one.
Here are some important things to start thinking about before you dive into a prenup
Before getting a prenup, here are some things to start thinking about. First, a prenup is about fairness. It’s not about taking advantage of your spouse. You may need to compromise, but it should be a win-win.
Second, you are going to need to put all of your finances on the table. That sneaky credit card bill that’s been adding up? Those pesky student loans? That inheritance from your great-grandmother in that one account? It’s all fair game, and it needs to be disclosed to your soon-to-be spouse. Start preparing your finances and maybe even start listing out everything you have.
Third, do you have children from another marriage? If so, you will probably want to start thinking about how you want your prenup to look with them in mind. Meaning if you and your future spouse split (sans prenup), your spouse may be awarded a portion of your property, leaving your kids with less than they would have, had you gotten a prenup.
What to avoid in your Massachusetts prenup
Before jumping into all the necessary steps to get a prenup in Massachusetts, let’s talk about what not to do.
- Do not make a verbal agreement prenup. These don’t hold up in court. You must put your contract in writing.
- Do not forget to sign it and notarize those signatures–both of you! Seems obvious, but you’d be surprised. A prenup without notarized signatures is just paper.
- Do not overly pressure, intimidate, and deceive your spouse when it comes to the prenup. This is a fast-track way to have a judge toss your prenup in the trash. And also, not a great start to your long and happy marriage.
- Do not include provisions about committing illegal acts, obviously.
- Do not include provisions about child custody or child support. Kids are not property or money, and you can’t predetermine their destiny.
- Do not include overly unfair terms. This is another way to destroy the validity of your prenup.
- Do not skip the financial disclosure part (more on this below).
Steps for getting started on a prenup in Massachusetts
Now that you know what to avoid with a prenup let’s start talking about the steps to get one. It’s a breeze, I promise!
Step 1: Have a conversation with your partner about getting a prenup.
Let’s face it: this can be awkward if you both aren’t in agreement about getting a prenup, but the conversation needs to be had! Just be honest and highlight the positives. Maybe you have debt, and your fiance doesn’t; this would be positive in their mind, so bring that up! Make it a collaborative process and talk about financial goals. You can put your heads together to decide on investments, retirement, debt payoff, children, and everything in between. Maybe pop open that expensive bottle of wine (but don’t drink too much) and make a night out of it. See, talking about finances can be fun!
Step 2: Plan ahead and make sure you execute the agreement early on, long before the wedding day.
This one is important. By “plan ahead,” we mean like three to six months before your wedding date. So, don’t procrastinate on having this talk with your soon-to-be spouse. A prenup should be created well in advance of the wedding, and most people get engaged and leave around a year until the wedding date. You’ve got this! You should know that if it’s signed too close to the wedding, you put your prenup at risk. If you’re running out of time, you can always do a postnup, but be warned: postnups are not as solid as prenups in some cases. Choosing a postnup over a prenup should be reserved for an emergency situation.
Step 3: Sign up with HelloPrenup or hire two attorneys or both!
Whether you sign up and use HelloPrenup, hire an attorney, or do a little bit of both, you will likely need some assistance in drafting that prenup. HelloPrenup can help you create your own prenup, and so can an attorney. If you use HelloPrenup, you can also have an attorney review it after you download it. But you don’t have to! Either way, you choose, using prenup will likely save you some money in legal fees.
Step 4: Decide on all the terms of the prenup.
Finally, the meat of the agreement. What do you actually want to say in your prenup? Start off by thinking about property division and alimony. Who gets the house? Who gets the car? How will you handle debts incurred during the marriage? How will you handle inheritances? Will one person be entitled to alimony? Will you waive alimony altogether? These are all questions you can answer in a prenup.
After you’ve got those questions squared away, you can think about other clauses, like sunset clauses, social media clauses, and even infidelity clauses. For example, a sunset clause puts an expiration date on your prenup for a certain wedding anniversary. You can see more info on the various types of clauses here.
Step 5: Financial disclosure, financial disclosure, financial disclosure.
This is a key part of the prenup-making process. Both parties must disclose all of their finances. That includes income, assets, debt, future inheritances, businesses, real estate, crypto, and everything else you can think of that has to deal with value! In Massachusetts, if you don’t fully and fairly disclose all of your assets, you risk your prenup being thrown out, and then you will have your stuff divided according to state law and the judge’s discretion.
Step 6: Sign off and notarize it
Don’t forget to sign on the dotted line. That’s right-you both need to sign off on the prenup! A piece of cake. You also need a notary. A notary authenticates the prenup and verifies that you are who you say you are and you actually signed the document. After watching you sign the document, the notary will also sign and apply an official seal. It’s an extra layer of protection in avoiding fraud. Nowadays, you don’t even have to leave the comfort of your own home to get a notary; you can have a notary virtually watch you sign. Then, bam! You’re all finished!
Step 7: Live happily ever after
You’ve done it! Now you can live happily ever after. But first, walk to the fridge, open up that bottle of champagne, and pop it! Congratulations on your freshly inked prenup; now, you can move forward with the rest of your lives.
Getting a prenup is a smart way to protect yourself. There are a few things you should keep in mind when getting a prenup in MA. First, start the conversation early. It’s a good rule of thumb to get the prenup process started three to six months before the wedding. This is especially crucial if you plan to hire attorneys. Second, disclose your finances. Make sure you don’t forget anything. It’s absolutely mandatory that you include all of your assets and debts! Otherwise, you risk invalidating the prenup. Third, decide on what to do with all your assets, inheritances, and debt. This is the meat of the agreement, so think it through! Fourth, think of any additional clauses you’d want to add (sunset clause, etc.). Fifth and finally, sign and notarize! Easy peasy.
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 [email protected]