Prenuptial and Postnuptial Agreements
Prenuptial agreements (“prenups”) can be difficult to discuss with your partner. However, it is important to consider a prenup if marriage is on the horizon. A prenup is a contract between two parties who intend to be married that allows them to protect assets and, potentially, future income or inheritances, in the event of divorce or death. A postnuptial agreement (“postnup”) is essentially the same thing, but is created after the parties are already married. A conversation about the appropriateness of a prenup, or a postnup, 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
How Prenuptial Agreements Protect You in the Event of a Divorce
Massachusetts law sets forth that all property, regardless of when or how it was 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 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 is generally given very little weight when determining an equitable division, except in short-term marriages.
However, when creating a prenuptial agreement, you have the opportunity to carve out property that will be designated as separate property and therefore is 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. Additionally, prenups present opportunities to address future alimony and how any jointly held assets will be divided.
How Prenuptial Agreements Protect you in the Event of Death
Under Massachusetts law, even if you disinherit a spouse in your will, they are still entitled to receive a spousal share of your estate. Furthermore, if you pass away without a will, your entire estate is given to your spouse. If those circumstances are not what you want in the event of your death, a prenuptial agreement presents you with a unique opportunity to address those estate matters before getting married.
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 occurs at least three months prior, if possible. Entering into a prenup right before your wedding day can compromise the chances of future enforceability because “duress” may be argued. In order to maximize the chances of future enforceability, both parties should have ample time to review and negotiate the prenup with the assistance of counsel prior to getting married.
Having a well-drafted, thorough prenuptial agreement is the best defense to a potential future divorce. Even if you are confident in your marriage, it is always better to have a prenup and not ever need it than it is to need one and not have it, similar to a car insurance policy. At Hera Law Group, we can advise you regarding your prenuptial agreement. Our experienced attorneys will work with you to craft a prenuptial agreement (or postnuptial agreement) that is tailored to your needs and protects your interests. And, if your spouse is the one requesting a prenup/postnup, we can assist you in understanding what is being proposed to ensure you are getting a fair deal.