Prenuptial agreements (“prenups”) can be difficult to discuss. However, it is important to consider a prenup if marriage is on the horizon. A prenup is a contract between two parties that allows them to protect assets and, potentially, future income or inheritances, in the event of divorce or death. Furthermore, a conversation about the appropriateness of a prenup can help to set reasonable expectations and reduce future conflict. If marriage is in your future, then a prenuptial agreement should be, too.
Common Reasons For Pursuing A Prenuptial Agreement
- To protect assets you bring into the marriage
- To protect family assets or assets that are gifted to you
- To protect family inheritances
- To protect trust interests
- To delineate future allocation of jointly held assets
- To determine future alimony
- To address debts either party brings into the marriage
- To determine what each spouse is entitled to inherit in the event of death
How Prenuptial Agreements Protect You In The Event Of A Divorce
Upon marriage, your spouse has a potential interest in your property. Massachusetts Law sets forth that all property – regardless of when/how obtained - may be subject to an equitable division in the event of divorce. Pursuant to M.G.L. c. 208, section 34, there are seventeen (17) factors that the court considers when determining property division at the time of divorce. Who brought property into the marriage is only one factor to be considered and, except in the case of short-term marriages, is generally given very little weight when determining an equitable division. When crafting a prenuptial agreement, you have the opportunity to carve out property that will be designated as separate property and, therefore, not subject to division at the time of divorce. Without a prenup, it is likely that all property, regardless of who brought it into the marriage or how it was acquired, goes into the marital pot for division. Prenuptial agreements also present an opportunity to address future alimony and how any jointly held assets with be divided.
How Prenuptial Agreements Protect You In The Event Of Death
Under Massachsuetts law, even if you disinherit a spouse via your will, he/she is still entitled to a receive a spousal share of your estate. Furthermore, if you pass without a will, your entire estate passes to your spouse. Prenuptial agreements present a unique opportunity to address estate matters now.
Legal Requirements For A Prenuptial Agreement
When the court assesses the enforceability of a prenuptial agreement, it considers whether the agreement was fair and reasonable at the time of execution and, then a “second look” is given to consider whether the agreement is “conscionable” at the time of divorce.
Timeline For A Prenuptial Agreement
It is important to draft and execute your prenuptial agreement well in advance of your wedding; our office advises that execution occur at least three months prior to solemnization, if possible. Entering into a prenup on the eve of your wedding can compromise the chances of future enforceability as “duress” may be argued. In order to maximize the chances of future enforceability, both parties should have ample time to review and negotiate the prenuptial agreement with the assistance of counsel prior to the wedding day.
Like anything in life, there are no guarantees that a prenuptial agreement will be enforced. None of us can predict the future. However, having a well-drafted, thorough prenuptial agreement is the best defense to a potential future divorce. As the saying goes, it is better to have a prenup and not need it in the future, than it is to need one and not have one.
At Levine-Piro Law, we can advise you regarding your prenuptial agreement. Our experienced attorneys will work with you to craft a prenuptial agreement that is tailored to your needs and protects your interests. And, if your spouse is the party requesting a prenup, we can assist you to understand what is being proposed and to ensure you are getting a fair deal.
To discuss your prenuptial agreement further, call 978-637-2048 to schedule a free phone consultation.