Massachusetts Prenup & Divorce Info
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Prenups in MA
A Prenuptial Agreement is a contract between two people who plan to marry, that sets forth division of property and alimony in the event of divorce or death. In Massachusetts, a prenup becomes binding upon marriage of the parties. A Massachusetts Prenuptial Agreement may contain provisions regarding alimony to be paid or a waiver of alimony, as well as other financial arrangements for assets of either party in the event of a divorce or death. Before entering into a Prenuptial Agreement it is imperative that you understand your legal rights under Massachusetts law, and what rights you are waiving by contracting around MA divorce law with a prenup. Below, we have included several resources, including links to Massachusetts statutes, summaries of Prenuptial Agreement caselaw in Massachusetts and links to the cases, and some general guidelines. Should you need further clarification on your legal rights at any time, it is important that you contact an attorney to advise you.
What to include in a valid Massachusetts prenup
For a prenup in MA to be in line with requirements for enforceability, it must be drafted with the following in mind:
- Put it in writing, people! Yes, your prenup has to be a written contract – so no, you can’t just think it into existence. Make it formal.
- Terms included must be lawful
- Signed by both parties (HelloPrenup recommends an initial at the bottom of each page!)
- Signed voluntarily (without duress, intimidation, deceit, etc.)
- Signatures must be notarized
- Full and fair financial disclosure – that’s right, this means disclosing *all* of your finances. See our prenup encyclopedia for a more precise, detailed definition.
- Representation by an attorney adds an extra layer of protection
What to exclude from your MA prenup
Your prenup could be at risk for enforcement if you include any of the following provisions:
- Child custody or child support
- Incentive to commit illegal acts
- Incentive for divorce
- Unfair, unjust, or deceptive terms
A Massachusetts Prenuptial Agreement can include the following (including, but not limited to!):
- Separate Property: A MA prenup can specify what assets should be considered separate, and which should be considered part of the marital estate.
- Marital Property: A prenup in Massachusetts can dictate what property should be considered marital property, or should become marital property over time. Separate assets can be phased in over the course of the marriage, or kept totally separate, including appreciation and income derived from the separate property.
- How marital property will be distributed upon divorce
- Sunset Clause: Whether or not the prenuptial agreement will dissolve at a certain date
- Alimony: The modification or elimination of Massachusetts alimony
- Any other provisions, as long as those provisions do not violate public policy.
Statutes & terms to understand for a valid Prenup in Massachusetts
*Before we go into terminology, we highly suggest reviewing our “Prenup Encyclopedia” that breaks down general Prenuptial Agreement legal terminology and phrases you should know.
Like most states, Massachusetts allows both “fault” and “no-fault” grounds for divorce. In a no-fault divorce, you can simply claim “irreconcilable differences” as to your reason for why the marriage broke down. Unlike a fault divorce, claiming “irreconcilable differences” does not require any explanation or proof as to why your marriage has broken down.
Alternatively, Massachusetts allows for the following fault grounds:
- desertion for one year before the divorce
- drug or alcohol abuse
- cruelty or abusive treatment, and
- a prison sentence of five or more years.
Fault-based divorces are often more complex, time consuming, and expensive, because you have to prove that your spouse engaged in one of the above offenses, and that was the reason for the breakdown of your marriage.
Property that is considered part of the marital estate
In Massachusetts, marital property can include property acquired during the marriage, but can also include property acquired prior to the marriage, depending on the circumstances. Massachusetts is an equitable division state. Please note, “equitable” division is not synonymous with “equal” division. So, in determining how a court will divide property during a divorce, judges are permitted to consider 18 factors, including, but not limited to, the length of the marriage, the health of the parties, the earning potential of the parties, among other factors. This is important to note, as the longer the marriage, the more likely property that may otherwise be considered “separate” may be brought into the marital estate subject to division. That is, unless you have a prenuptial agreement, of course!
In MA, property that is not part of the marital estate subject to division upon divorce is called “Separate Property.” As described above, Massachusetts operates like many other equitable distribution states, where a list of factors (see above) allow a court to determine what property should be considered marital and subject to division, and what property is considered separate, depending on a variety of factors dictated by the state’s rules. Rule of thumb? If you want to ensure that your separate property, including any appreciation or income derived therefrom remains separate, a prenuptial agreement is key.
Massachusetts Alimony Statute
Financial support upon divorce
In Massachusetts, spousal support is called “alimony.” When a couple divorces and one spouse is financially dependent on the other spouse, the court may order the higher earning spouse to provide the financially dependent spouse with money for a certain period of time, dependent on the length of their marriage. In determining alimony, the court may consider several factors to help determine the amount and duration of alimony payments, including:
- The age and health of the parties
- The length of the marriage
- Income and employability of each spouse
- Marital lifestyle and the ability to maintain that lifestyle
- Contributions of each spouse to the marriage
- Loss of economic opportunity due to the marriage
- Other factors deemed relevant
“You should know…
Prenuptial Agreements have been upheld in Massachusetts under the decisions of Rosenberg v Lipnick, Osborne v Osborne, DeMatteo v DeMatteo and Austin v Austin. In order for a Prenuptial Agreement to be upheld in Massachusetts, it is necessary that the Agreement be fair and reasonable at the time it is executed and fair and reasonable at the time enforcement is sought.
Under the case of DeMatteo, a Party is allowed to contract away substantial monetary rights. In order to be considered fair and reasonable, an agreement does not need to provide Alimony at a level proportionate with the parties lifestyle during the marriage. Rather, Alimony sufficient to cover basic necessary expenses, including food, clothing, housing and health insurance is sufficient.
Case law in Massachusetts indicates that full and fair disclosure of all assets is essential to enforcement, and each Party having the appropriate knowledge or representation through attorneys to ensure that the parties understand the ramifications of entering into the Prenuptial Agreement.
A Prenuptial Agreement can be utilized in order to keep each person’s property separate, including future appreciation and accretion, as well as future inheritance. A Massachusetts prenup can also limit, or eliminate the rights that surviving spouse’s are otherwise entitled to.
In terms of Alimony, a Massachusetts prenup can provide for how alimony payments will be structured, or waived entirely, or lump sum payments to be made upon divorce. A prenuptial agreement also allows you to establish what will be considered marital property subject to division in a divorce, what division may look like, including as a percentage at the time of divorce. However, it is important to keep in mind that a prenup in MA cannot establish custody or child support rights!
A prenuptial agreement can significantly limit the financial exposure you may have in the event that you and your spouse choose to divorce in the future.
Massachusetts Prenup Caselaw to know
Austin v. Austin, 445 Mass. 601 (2005)
In the case of Austin v. Austin, the MA Supreme Judicial Court reversed both the trial court and Appeals Court decisions and affirmed the ability of divorcing parties to waive alimony in a Massachusetts prenuptial agreement. In the case of Austin v. Austin, the wife waived her right to alimony in the Massachusetts Prenuptial Agreement. The Judge presiding over the divorce trial invalidated the Prenuptial Agreement with respect to alimony, reasoning that the waiver of alimony was not reasonable at the time of execution, but enforced the remainder of the Agreement with respect to property division. On appeal, the Massachusetts Appeals Court affirmed the Trial Court’s judgment, reasoning that the wife’s waiver of alimony was not fair and reasonable in light of the Parties circumstances at the time of the marriage. During the marriage, wife was a full time mother to the couple’s child. However, the Judge noted that in certain cases an alimony waiver is unenforceable. The Massachusetts Supreme Judicial Court found the Prenuptial Agreement, including the wife’s waiver of alimony to be enforceable. This follows the Court’s earlier decision in the case of DeMatteo. This decision also dismissed wife’s argument that the prenuptial agreement which included a permanent waiver of alimony somehow “…stripped her of all marital interests…”
The Court’s decision further affirmed the fact that a Prenuptial Agreement waiving a spouse’s rights to property division and alimony, will be enforced in Massachusetts absent a “…mental or physical deterioration of the contesting party…” or “…erosion of promised support by inflation…” Situations such as these would lead a court to reason that the Prenuptial Agreement is unconscionable and cannot be enforced.
Dematteo v. Dematteo 436 Mass. 18 (2002)
Here’s how the story goes: The parties married in 1990 at the ages of 47 and 41. At the time of their marriage, the soon-to-be spouse’s financial situations were as follows:
- Husband had substantially more assets than wife, owning a substantial stake in a family business, along with numerous assets. His estimated net worth was over $80 million.
- Wife owned no real property, had few assets, and made $25,000 per year as a secretary. She shared a two-bedroom apartment with her daughter from her first marriage.
Before their marriage, Husband and Wife discussed the need for a prenuptial agreement and obtained their own attorneys who negotiated and drafted their prenup. Fast forward 8 years- Husband files for divorce and sought enforcement of the prenup agreement, and after 3 days of a divorce trial, the court held that the agreement was unenforceable. Wait, WHAT?
Relax. The Prenuptial Agreement was enforced.
Ultimately, the Supreme Judicial Court overruled the trial court’s decision, and enforced the prenuptial agreement. The court reasoned that even though the terms of the prenuptial agreement heavily favored the wealthier husband, the agreement was both “fair and reasonable” at the time of execution and at the time of enforcement. Want to read all of the juicy details? Check out the full case text.
Osborne v. Osborne, 384 Mass. 591 (1981)
In the Massachusetts prenuptial case of Osborne v. Osborne, the Parties executed a prenuptial agreement only a few hours before the marriage too place. The prenup detailed that neither party would be entitled to the other’s Separate Property and there would be a full waiver of alimony in the event of a divorce. At the time the prenuptial agreement was signed, the wife was represented by an attorney, but the husband was not represented by an attorney. This is a significant matter, in party because the Wife was an heiress to a significant family fortune of about $17 million. The husband on the other hand, did not have any significant assets.
The trial court upheld the prenuptial agreement, and it was appealed. On appeal, the Supreme Judicial Court of Massachusetts declared that a prenuptial agreement that contracts away the rights of the Parties under Massachusetts divorce law in the event of a divorce is valid and enforceable. The Court also reasoned that the following must be considered in determining the validity of a prenuptial agreement, in Massachusetts. In order for a prenuptial agreement to be enforced: 1) There must be full disclosure of the Parties’ assets at the time of execution, and free from duress or coercion; 2) the agreement must be fair and reasonable at the time of the execution; and 3) the agreement must be fair and reasonable at the time of enforcement.
The Massachusetts Appeals Court enforced the prenuptial agreement, and determined that the husband had not entered into the Prenuptial Agreement under duress, even though he was not represented by an attorney and it was signed only a few hours before the wedding.
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