In an earlier post I explained some common misconceptions about prenuptial agreements. In this post I want to delve further into that topic, and outline the requirements of a valid prenuptial agreement in Massachusetts. Our primary source of legal authority regarding prenups is the Supreme Judicial Court case DeMatteo v. DeMatteo, which describes these requirements in detail.
1. The agreement must be fair and reasonable for the contesting party at its execution.
Massachusetts law requires antenuptial agreements to be fair and reasonable when entered into. However, in this instance the legal definition of fair and reasonable doesn’t necessarily mean fair or reasonable. Instead, the law only requires that the economically disadvantaged spouse not be “stripped of substantially all marital interest,” and that the terms of the agreement do not “essentially vitiate the very status of marriage.” To put it in simpler terms, a prenup can be incredibly one sided, as long as the disadvantaged spouse receives something. But please note, just because a prenup can be one-sided, doesn’t mean that it has to be. Some prenups are abundantly fair, and provide well for each spouse.
2. Each future spouse must be fully informed of the worth of the other party.
Each party to a prenuptial contract must make full and fair disclosure of their financial status, so that each party can make a reasonable decision of whether to sign the prenup and enter into marriage. This doesn’t mean that financial disclosure must be accurate to the penny, but you’ve got to be pretty close.
3. The agreement must specifically set forth the waiver of certain marital rights.
The purpose of a prenup is to predetermine the effect of a termination of marriage by death or divorce. Without a prenup, married people have certain rights inherent to the status of marriage. Those rights include the right to a court-determined alimony provision and property settlement. With a prenup, the parties waive those rights, and the prenuptial contract must make this clear in its language.
4. The parties must have independent legal representation.
The court implies this requirement in its treatment of the waiver of rights requirement described above. Specifically, the waiver must be meaningful, and in order to be meaningful, each spouse must understand the rights that they are substituting with the prenup. Having independent counsel helps to ensure that the parties understand their rights.
5. There must be sufficient time for each party to consider the effects of the premarital agreement.
This requirement is also linked to the meaningful waiver requirement. In order to understand their rights, each party must have a sufficient amount of time to consider them. A prenup signed on the steps of the church will likely be thrown out in divorce court. I prefer for my clients to sign their premarital agreements with at least a month to spare before the wedding. However, the court has upheld prenups signed much closer than that.
6. The prenuptial agreement must be conscionable at the time of enforcement.
When analyzing a prenuptial agreement in Massachusetts, the Probate and Family Court considers all of the factors described above to determine whether the agreement is valid. They then make a “second look analysis” to determine if it would shock the conscience to enforce the agreement now, even if it was valid when signed. In this analysis, the court is concerned with a potential change of circumstances that occurred during the marriage.
Specifically, the court considers whether circumstances occurring during the marriage would leave the contesting spouse without sufficient property, maintenance, or employment to support themselves. This provision mostly comes into play where a spouse becomes disabled during the marriage, through some type of accident or medical condition. In these unfortunate cases, the court will not enforce a prenup if it means that the state will have to support the former spouse.
Of course we could have a detailed discussion of each of these factors (which is exactly what happens when someone challenges a prenup), but this post lays the legal framework for prenuptial agreements in Massachusetts. Feel free to direct any comments to the comment box, or to me directly. Stay tuned for the next post.