Prenuptial Agreements

You are getting married! You are looking forward to celebrating with your husband or wife to be, your friends and family. In the midst of the excitement, you or your future spouse (or possibly parents or other family) realize that it is time to consider a prenup. You are thinking …

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You are getting married! You are looking forward to celebrating with your husband or wife to be, your friends and family. In the midst of the excitement, you or your future spouse (or possibly parents or other family) realize that it is time to consider a prenup. You are thinking this is a real buzzkill. However, you should look at this as an opportunity instead of a burden. Many couples don’t discuss their views on money and spending before they get married because of the taboo nature of the topic. As a result, people go into a marriage unprepared for their spouse’s view on saving, spending and what money represents to him/her. Having this conversation early on is an opportunity to bring these issues to the forefront and limit future conflict.

Massachusetts law (General Laws, chapter 208 section 25), allows for couples to enter into Prenuptial Agreements. Unfortunately, the law itself provides little guidance other than “the parties may make a written contract providing that, after the marriage is solemnized, the whole or any designated part of the real or personal property or any right of action, of which either party may be seized or possessed at the time of the marriage, shall remain or become the property of the husband or wife, according to the terms of the contract.” Given the broad and vague nature of the statute, you must decide your goals in entering into an agreement. If your goal is to preserve assets you have accumulated or if you own or expect to own a family business or inherit other assets, you may decide that it is prudent to enter into a prenuptial agreement. The agreement may provide what happens with respect to property in the event divorce or death and spousal support in the event of divorce.

When negotiating a prenuptial agreement, both parties must have their own attorneys. This ensures each party understands how the terms of the agreement benefit and obligate them, and ensures the agreement will be enforceable in the future. In order to be enforceable, Massachusetts courts have held that a prenuptial agreement must be fair both at the time the agreement is signed and at the time it is sought to be enforced. In order to be enforceable, prenuptial agreements must be entered into voluntarily and without coercion by either party. For this reason, courts have found that the agreement must be entered into far enough in advance of the wedding that neither party feels coerced into signing.

When considering a prenuptial agreement, it is important not to create unnecessary conflict and therefore, you may want to choose an approach that is non-adversarial. The traditional approach involves each spouse hiring attorneys to negotiate the agreement. Oftentimes the attorneys approach the agreement in the same adversarial way many attorneys approach a divorce. If you want to minimize conflict and embrace the opportunity to discuss your views about the issues, you should discuss with your attorney his/her approach to negotiating a prenuptial agreement and make sure it is acceptable to you. Attorneys who are mediators and those who are trained in collaborative practice generally approach prenuptial agreements by advocating without being adversarial. In addition, such attorneys recognize the goal of strengthening communication and problem solving skills for the parties moving forward.

Instead of the traditional approach, you can choose to mediate a prenuptial agreement and hire separate attorneys to review the agreement prepared by the mediator. You can also engage in the collaborative process with a neutral facilitator and collaboratively trained attorneys. Regardless of the approach, make sure you and your spouse are comfortable with your lawyer’s philosophical approach to the process.

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