Prenuptial or premarital agreements have become more popular in recent years for a variety of reasons. With the shrinking middle class, many entering their first marriage expect significant inheritances or gifts from parents. People entering second marriages often seek extra protection, especially for assets acquired before marriage. Parents may encourage a premarital agreement, or the individual may choose it themselves. Either way, the agreements have gained popularity in Massachusetts. It’s best to understand how they work before entering one.
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 address various issues and adapt to the specific facts and circumstances of each 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. The agreement would exclude such terms and not enforce them unless the entire agreement is set aside. Courts determine child-related issues during divorce. Child support depends on income at that time, while custody arrangements prioritize the children’s best interests, which cannot be decided 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, if the parties fail to follow basic guidelines, the court may set aside the agreement and refuse to enforce it during 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 understand its terms. They must also have adequate time to consider the terms before marriage. 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. A party in a better financial position may feel tempted to push strongly for the prenuptial agreement. However, being too aggressive can make the agreement unenforceable. 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 family court judge overseeing the divorce set aside the premarital agreement in the 17-year marriage. 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 we have prevented this? What actions can we take next time to avoid it? 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. To receive effective counseling on the consequences of no agreement, speak with a lawyer. Ensure the lawyer specializes in 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 the wedding scheduled. 150 family members book flights and hotel rooms. Tens of thousands of dollars are spent. One spouse then demands the other sign a prenuptial agreement, waiving important rights, before marriage. 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 cannot be one-sided. In Massachusetts, a judge will review it during enforcement. The judge ensures the agreement isn’t unconscionable and doesn’t cause extreme financial hardship to one spouse. Therefore, both parties should draft the agreement to avoid leaving anyone 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.