Prenuptial Agreemnts
A prenuptial agreement is a contract entered into by both parties prior to marriage, providing clarification of property and financial rights and obligations of each spouse. Its purpose is to protect assets of the individuals gained prior to and/or during the marriage in the event of divorce.
The agreement can address a multitude of issues, but most commonly includes provisions for division of property and for spousal support (alimony).Prenuptial agreements cannot regulate issues relating to the children of the marriage such as custody, visitation, and child support.
A prenuptial agreement is a valuable tool in preventing disputes over division of property in the event of divorce. They are recognized and enforced in the Commonwealth of Massachusetts, provided that they are drafted and executed properly. Both parties should have lawyers represent them to ensure that the agreement itself is legally sound, but just as important, when a judge is asked to enforce a prenuptial agreement, one of the factors in his or her decision is whether each party had independent legal representation.
Factors considered in determining the validity of a Prenuptial Agreement:
- Must be in writing
- Must be signed voluntarily by both parties, before the marriage
- Must provide full disclosure of each party?s assets and income
- The terms of the agreement must be fair and reasonable both at the time of execution and at the time of divorce
- Each party had an opportunity to obtain separate legal counsel of his or her own choosing
- There was no fraud or coercion in obtaining the agreement
In Massachusetts, Postnuptial agreements are now recognized and legally enforceable. A postnuptial agreement, or postnup, is just like a prenup except that it is executed during the marriage, not prior to. They are often used by couples who meant to create a prenup but never got around to it prior to their wedding. Another scenario in which a postnup may be used is when a couple has separated and then reconciled. Realizing that they are currently on good terms but that their attempt to save the marriage may ultimately fail, they create a postnup agreement, settling issues of how to divide assets. It is easier, faster, and much less expensive to create a postnup agreement than to fight about financial issues in the midst of a divorce proceeding.
In Massachusetts, Domestic Partners may enter into a Cohabitation Agreement which is a written contract between two parties who have chosen to live together.