Prenuptial or premarital agreements have become more popular in recent years for a variety of reasons. With a shrinking middle class, many people entering their first marriage expect to receive a significant inheritance or gifts from parents at some point during their lives. Additionally, it is not uncommon for people entering second marriages to want an additional sense of protection, particularly for the assets they acquired before getting married. Sometimes the idea of protecting oneself with a premarital or prenuptial agreement is pushed by a party’s parents, and sometimes it is the idea of the party him or herself. Either way, the agreements have gained popularity in Massachusetts. Before you enter into one, you are well served generally understanding how they work.

Essentially, the idea of a prenuptial agreement is that the parties choose how a divorce would work in the event it ever happens.  The agreements can cover different issues and are generally tailored to the individual facts and circumstances of the situation.  The focus, however, is always financial, dealing almost exclusively with alimony and/or property division.  The terms of a premarital agreement attempting to establish a custody arrangement or child support figure are unenforceable. Any such terms would be stricken from an agreement and not enforced–that is, if the entire agreement was not set aside as a result. Issues regarding the children will always be determined at the time of divorce, because child support is always based on income at the time it’s determined, and custody arrangements are always based on the best interests of the children, which cannot be determined in advance.

The parties are generally free to enter into agreements regarding alimony and property division, called equitable distribution in Massachusetts, as they see fit. However, unless some basic guidelines are followed, the parties risk the agreement being set aside and not enforced at the time of divorce. When that occurs, it is ordinarily a big disappointment to the party in a superior financial position and generally undermines the purpose of the entire process.

Parties entering into a premarital agreement must generally understand the terms of the agreement and must have adequate time to contemplate the terms before getting married. Failing to have these elements present will raise the issue of whether the parties truly understood the agreement into which they entered, and also whether they entered the agreement under duress. While it may be tempting for a party in the better financial position to push strongly to get the prenuptial agreement completed and signed, being too aggressive may result in the agreement not being enforceable. One important element in ensuring the absence of duress is for each party to have a competent family law lawyer represent them through the process.

These issues were recently discussed in a rule 1:28 opinion in the case of Allen v. Allen. In that case, the premarital agreement in a 17-year marriage was set aside by the family court judge overseeing the divorce. The facts upon which the judge relied are as follows. The wife was from Brazil and her primary language is Portuguese. The husband exclusively spoke English, and when they started their relationship, they needed an interpreter just to communicate. Leading up to their marriage, the husband told the wife that he would not marry her unless she signed a prenuptial agreement. He had an agreement drafted by a lawyer who did not speak Portuguese.  The husband signed the agreement five days before the wedding. The wife then brought the agreement to the Portuguese-speaking lawyer who, although he did not represent her in the matter, translated the document for her. Notably, that lawyer did not practice divorce or family law, something the appellate court took note of in affirming the trial judge’s decision.

The Portuguese-speaking lawyer’s only function was translating the prenuptial agreement verbally into Portuguese for the wife. The agreement was generally protective of the husband’s interests, waving alimony and property division between the parties.

When the parties filed for divorce, the husband sought to enforce the agreement, and the wife sought to have it set aside. The wife prevailed, and the judge ultimately ordered the husband to pay alimony for a period of 702 weeks. The judge also distributed the marital estate, distributing most of it to the husband but a sizable portion to the wife.

The husband appealed, clearly dissatisfied with the trial judge’s ruling. How could this have been avoided? Competent and experienced divorce and family law attorneys know the basic requirements of a prenuptial agreement. Even if they aren’t in the practice of drafting or negotiating these agreements, they see them come up in divorce cases. Step one in ensuring a prenuptial agreement is enforceable is having competent, experienced divorce lawyers representing each party. The reason that is necessary is that the parties are not able to enter into an agreement knowingly if they don’t understand how a divorce would work in the absence of an agreement. In order to be counseled effectively on what would happen in the absence of an agreement, you need to speak with a lawyer who actually understands divorce and family law.

Beyond having competent counsel, the concepts of basic contract law would apply. For the agreement to be enforceable, you need to have a full disclosure of finances from both parties. Each party needs to understand the basic financial world of the other. That includes the other party’s income, assets, and debts. There also must be adequate time between signing the agreement and when the wedding actually occurs. Failing to have that creates an argument of duress. Consider for example the wedding being scheduled, 150 family members booking flights and hotel rooms, tens of thousands of dollars spent on the wedding itself, and then one spouse saying he or she will not marry the other without the other signing a prenuptial agreement waving important rights.  That fact pattern would put the individual in such a difficult position here, that he or she may sign just to avoid problems for his or her family and friends. Signing the agreement far enough out will avoid these issues. The agreement also cannot be completely one-sided. In Massachusetts, the judge will review the agreement at the time it is enforced to make sure it is not unconscionable, putting one spouse into an extreme financial hardship. Accordingly, the parties are well-advised to draft the agreement in a way that neither party will end up destitute.

The first step in getting a premarital agreement established is a consultation with a competent divorce lawyer or family law lawyer To schedule a free consultation with our office call 978-225-9030 or complete the contact form on this website.