Prenuptial and Postnuptial Agreements in Massachusetts

prenuptial and postnuptial Massachusetts

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Prenuptial Agreements in Massachusetts

Prenuptial agreements, also known as “prenups” premarital agreements or antenuptial agreements, are generally obtained by people prior to getting married in order to protect their property or estates that they have acquired prior to the marriage, to protect children from prior marriages or relationships, to protect family or closely held businesses and/or to address potential alimony or other issues that may apply in the case of a divorce or death of a spouse. Property that is designated as separate property under a prenup is generally protected from equitable division under the statutes applicable in the case of a divorce. The idea of a prenuptial agreement is to allow parties to exercise their freedom of contract regarding what marital rights will apply in the case of divorce, or death of a party, rather than to defer to the applicable statutes.

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A prenup must be fair and reasonable at the time of execution, and requires that the parties are fully informed of each other’s income, assets, debts, business holdings and prior family ties or commitments. Additionally, in order for a prenup to be valid and enforceable under Massachusetts law, each party must be represented by independent counsel, and certain procedures must be followed, such as provision of the prenuptial agreement reasonably in advance of the wedding so as to provide sufficient time to review and fully consider the proposed agreement. The agreement must also be signed by each party free of duress, i.e. signed freely and willingly. It is also important to note that the agreement must not be so unfair as to be unconscionable at the time it is to be applied. For example, even if fair and reasonable at the time it was made, if the situation has changed such that at the time of application it would be unconscionable, then under what is termed the “second look doctrine” it still may be held invalid.

Postnuptial Agreements in Massachusetts

Postnuptial agreements are agreements that are entered into between spouses while they are married. They are relatively newly accepted under Massachusetts law, as of 2010, when they were declared not to be automatically invalid as against public policy. Postnuptial agreements are agreements that are entered into between spouses, while married, in an effort to settle between them potential issues regarding division of their assets or support. Because of the fiduciary nature of the relationship between the parties, and the fact that unlike in the case of a prenuptial agreement they are not free to walk away if they do not like the terms of the agreement, they are more closely scrutinized. There must be full financial disclosure. The agreement must be fair and reasonable both at the time of execution and at the time of application. The parties must have the opportunity to obtain separate, independent counsel to review and explain the agreement. There must be no evidence that the agreement was entered into as a result of fraud or coercion. The parties must knowingly enter into the agreement such that they understand what is being signed and that they are waiving their rights to a share in the other’s assets and/or support under applicable statutes.

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