Although the topic of finances, including the division of the couple's assets in the event their marriage ends, may seem unromantic, it is incumbent upon the bride and groom to consider and discuss their financial future, particularly the need for a prenuptial agreement in Massachusetts.
A prenuptial agreement is a contract entered into by two people intending to marry. The agreement, which must be in writing, has no effect until and unless the couple marries. The purpose of the agreement is to fix and determine all rights, claims, and obligations of the husband and wife in the event of a separation, divorce or death.
Prenuptial agreements usually address the division of assets and liabilities upon termination of the marriage as well as spousal support. Although prenuptial agreements may address issues pertaining to children of the marriage, such as custody, visitation, and child support, those issues are always subject to review and approval by the court.
Massachusetts courts have established certain requirements for the enforceability of a prenuptial agreement. Initially, a court asked to enforce a prenuptial agreement will consider whether there was full and complete financial disclosure by both spouses prior to the agreement's execution and/or whether each spouse had or should have had independent knowledge of the other spouse's worth before executing the agreement.
In deciding to enforce a prenuptial agreement, a court must find that the agreement was fair and reasonable at the time of its execution. In making that determination, the court may consider the spouses' respective worth, their ages, intelligence, literacy and business acumen as well as prior family ties and commitments.
Instead, a prenuptial agreement, even if one-sided, is considered fair and reasonable at the time of execution if the contesting party is not substantially stripped of all his or her marital interests.
If a prenuptial agreement is fair and reasonable at the time of execution, a court must then take a "second look" at an agreement at the time it is sought to be enforced. This second look requires a court to determine that a prenuptial agreement is not unconscionable at the time of its enforcement. In other words, enforcement of a prenuptial agreement cannot leave a spouse without "sufficient property, maintenance, or appropriate employment" to support himself or herself.
Prenuptial agreements have become an increasingly popular means of establishing the respective rights and obligations of spouses in the event of termination of the marriage by divorce. The enforceability of prenuptial agreements, however, is not absolute and prenuptial agreements should not be drafted without the assistance of experienced counsel.
To learn more about prenuptial agreements, contact the Law Offices of Renee Lazar either through email or telephone 978-844-4095 to schedule a FREE one hour no obligation consultation.