Generally, in order for an antenuptial agreement (also known as a prenuptial agreement) to be considered valid and enforceable in Massachusetts, the agreement must meet the following elements:

  • it must be in writing;
  • signed by the parties;
  • signed voluntarily and under no signs of duress or fraud;
  • made after full disclosure of the parties’ assets;
  • the agreement must be fair and reasonable, and enforcement must not be against countervailing equities;
  • the parties must have adequate opportunity to consult with independent counsel;
  • the parties must understand and clearly indicate the rights which they are contracting away; and
  • the parties must not relieve themselves of their legal obligations during the marriage through the agreement.

One of these important requirements for antenuptial agreement to be valid is the ability of both parties to consult with independent counsel. In particular where one party asks the other to sign the agreement before marriage, the courts will scrutinize the circumstances surrounding the signing to ensure that each party had a meaningful opportunity to consult with his or her own counsel.

In one unpublished appellate case, the court invalidated a prenuptial agreement on this basis, where the wife was from Brazil and spoke limited English. Allen v. Allen, 90 Mass. App. Ct. 1101 (2016). In that case, the husband’s attorney drafted the agreement. The wife visited a Portuguese-speaking attorney who translated the agreement and read it to her out loud; however, that attorney gave the wife no legal advice. The appeals court, agreeing with the trial judge, found that the wife did not have adequate opportunity to consult with counsel:

“As the judge observed, ‘Even if Attorney Kesselman explained the terms of the Agreement to the parties when he met with them, he represented only Husband. Wife’s admission to Attorney Guerreiro that another attorney already had explained the Agreement to her does not change that. Attorney Kesselman could not give legal advice to Wife about the consequences of the Agreement to her. Attorney Guerreiro did not represent Wife and did not give any legal advice to her about the Agreement.’ Contrary to the statement in the premarital agreement that the parties each “had independent legal counsel of his and her own choosing prior to their execution” of the agreement, Maria was unrepresented.” Allen, at 2.

In another case, the judge’s decision to invalidate the prenuptial agreement was also partially based on a lack of meaningful opportunity to consult with counsel. The court in that case noted:

“Although each party was represented by counsel, the evidence supports the judge’s finding that the negotiation was brief and one-sided. The mother first met with her attorney on October 31, 2002. In mid-November, the mother’s attorney sent a series of draft proposals to be included in the agreement to the father’s attorney. The father rejected the proposed terms and on December 16, 2002, the father’s attorney sent the father’s terms by electronic mail to the mother’s attorney with a message that due to the wedding scheduled for the following week the father “would like to sign this tomorrow as relatives are arriving on Wednesday and … schedules will be quite hectic after that.” Although the mother’s lawyer informed the father’s lawyer that the father “ha[d] to put something on the table” in light of the enormous disparity in the assets of the parties, the father did not alter his position. The mother agreed to the terms of the proposed agreement.” Schechter v. Schechter, 88 Mass. App. Ct. 239, at 256-257 (2015).

It is important to note that actual consultation with an attorney is not required in order for an antenuptial agreement to be valid; it is only the opportunity to consult with counsel which is required.