Bringing up the topic of a prenuptial agreement can be a real buzz-kill for the average blushing bride or grinning groom. But for folks headed down the aisle for the second or third plus time or those with substantial trusts or other assets, it's prudent to at least learn whether a prenuptial agreement or "prenup" would be useful.
A prenup, also called an "antenuptial agreement" or a "premarital agreement," is a written contract between two people who are planning to be married. Under most circumstances, Massachusetts law requires that the courts enforce properly written and executed prenups upon the end of a marriage. And let's face it---all marriages end, either through death or divorce.
Some of the issues a prenup can address include, but are not limited to, the following:
There are a number of factors a judge considers in deciding whether a prenup is valid (that is, whether to enforce the terms of a prenup).
First, a couple entering into a prenup must exchange all financial information, which includes information regarding assets, debts, income, and business interests. The person receiving the information should feel free to obtain independent appraisals of assets. The person providing the information should be ready and willing to produce all back up documentation to verify the information. Withholding any information during this disclosure process could provide grounds for a court to find that the prenup is not enforceable.
Second, each person should have an attorney and should speak to his or her separate attorney about the terms of the proposed prenup and how the prenup will affect his or her rights and responsibilities. If one person's attorney is drafting the agreement, the other person should seek independent legal advice to review the agreement. If one side refuses to seek separate advice, the agreement should contain a clause specifying that he or she had the opportunity to obtain independent legal counsel and declined to do so.
Third, the prenup needs to be completed and signed well in advance of the wedding. While there is no specific length of time cited in the law, the idea here is that neither party should feel pressured or rushed to sign the prenup. Don't spring a prenup on your fiancé a week before the wedding, when everything has been booked and paid in advance, and guests have already made or started their travel plans – your fiancé may feel that there is no turning back and, under intense pressure, sign a hurried prenup just to avoid cancelling wedding plans. If there is a problem later with the terms of the agreement, a judge is likely to find that your fiancé did not have sufficient time to truly consider the agreement and may invalidate the prenup.
Fourth, the prenup must be signed of each party's own free will. Neither side should threaten the other to sign the agreement. Down the road if there is a divorce, the threatened spouse could say that she or he was "under duress," which means she or he did not sign the agreement freely and willingly, and therefore the agreement shouldn't be upheld by a judge. If the judge finds that there was such duress, there is a good chance the judge will not enforce the prenup.
Lastly, when prenuptial agreements are challenged, courts will also look at the parties themselves. Did they understand what they were signing? Was there an even playing field---did one side have all the business smarts and the other person not so savvy? What assets and/or debts did each side bring into the marriage?
In most cases where a couple agreed to a "no alimony" clause in a prenup, the judge is obligated to follow the prenup even if circumstances have changed over the years. For example, let's say prior to the marriage, each person had a well-paying job. They agree that should they divorce, neither party would get alimony because they both had the ability to support themselves. During the marriage, they have children, and one spouse stays home to raise the kids.
At the divorce, the stay-at -home spouse wants alimony (for a time) to get back into the workplace, but the working spouse points to the prenup. If the judge finds that this agreement was fair and reasonable at the time it was madeand the stay-at-home spouse would not end up on public assistance after the divorce, the judge would probably uphold the prenup's terms and not award alimony. Otherwise, the no-alimony clause would not be enforced.
Prenuptial agreements are valuable planning tools in second or subsequent marriages. Consider this situation: Mary is a 60-year-old widow with two grown children. She owns her home free and clear. The house is worth about $500,000 and she has about $100,000 in the bank. She wants to marry Steve, who is 61 years old, divorced, and has a net worth of about $500,000.
They marry and they keep their assets separate, so that neither spouse puts the other's name on his or her property. Mary dies one year later. She has a will in which she left her entire estate to her kids. As her surviving spouse, Steve would still receive one-third of her estate because he has certain rights under state law that supersede Mary's will, but not a valid prenup. Under Massachusetts law, Steve could contest the will and receive to one-third of Mary's estate, regardless of the terms of the will.
Let's assume that Mary did not have a will which means that she died intestate. The state law again dictates that one-third of her estate goes to Steve as her surviving spouse and two thirds to her children. If Mary and Steve had a prenup, they could have agreed that Steve would not receive anything from her estate, which would leave Mary's children as her only heirs.
While this has not been tested in Massachusetts, judges must consider what is in the children's best interests for custody and visitation at the time of the custody and visitation dispute. If a judge is presented with a prenup that purported (attempted) to govern custody and visitation arrangements, and the judge believes that the terms set forth in the prenup are not in the children's best interests, in all likelihood the terms will not be enforced.
Child support is for the children's benefit and the amount is set by state law. If a couple had agreed to a "no-child support" clause in their prenup, or an amount lower that what the state law allows, there is a good chance that a judge will set that part of the prenup aside.