new bedford508.316.9720
boston617.795.3611

Boston Pre-Marital Agreement Laywer

NEW BEDFORD PREMARITAL AGREEMENT LAWYERS – BOSTON PRE-NUPTIAL CONTRACTS

In Boston, premarital agreements, also referred to as pre-nuptial agreements or ante-nuptial contracts, are a common mechanism for which persons intending to marry will spell out their rights and obligations to each other during marriage and in the unfortunate event of a separation.  Parties can enter these agreements with the help of a Boston prenuptial agreement attorney.

The law allows premarital agreements

Premarital agreements are specifically authorized under M.G.L.A. c. 209 § 25, which provides:

Section 25. At any time before marriage, 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. Such contract may limit to the husband or wife an estate in fee or for life in the whole or any part of the property, and may designate any other lawful limitations. All such limitations shall take effect at the time of the marriage in like manner as if they had been contained in a deed conveying the property limited.

One of the most common purposes of a pre-nup agreement is to set forth each party’s right to retain his or her own property separately so their spouse does not gain an interest in that property.  The premarital agreement can also define each party’s rights (or lack thereof) in the other spouse’s property upon death.

Although the Section 25 statute provides authorization for ante-nuptial agreements, the Supreme Judicial Court has imposed a requirement of reasonableness in that the contract must be fair and reasonable at the time of execution and not be unconscionable later when one party seeks to enforce the contract.

How to draft a premarital agreement

Parties wishing to get married often want to draft their own prenup agreement.  We do not recommend this for the reasons that the agreement is probably not going to have important provisions and representation by an attorney is a key component in the validity of a premarital contract.

Some of the more important provisions of a premarital agreement include provisions relating to which property is to remain the “separate” property of each party, what assets will become the “marital” property of the parties jointly, and how debts are treated.  Parties may also agree as to past, present and future alimony, as well as payment of taxes.

Pre-marital agreements containing provisions regarding unborn or minor children are probably unenforceable and may cause the entire agreement to be invalid.

Examining the Fairness of a Prenuptial Agreement – A Case Study

Do you have a prenuptial agreement and looking to get a divorce? Prenuptial agreements are sometimes referred to as ante-nuptial agreements. These are agreements that are made between two parties looking to get married but want to agree to certain things before their marriage. They can agree to a variety of things, but they cannot agree to any issues regarding children. One party cannot be forced into signing the agreement. If a party is forced into signing an agreement, i.e. “sign this agreement or we won’t get married”, the agreement may be considered invalid if the marriage ends in a divorce.

How do you determine whether the agreement is valid? To be enforceable, the agreement must be valid at the time of execution and must also be fair and reasonable at the time of divorce. DeMatteo v. DeMatteo436 Mass. 18 , 26 (2002). Austin v. Austin, 445 Mass. 601 (2005) set out guidelines for the judges to determine whether an agreement is valid. The judge must determine:  “(1) [the agreement] contains a fair and reasonable provision as measured at the time of its execution for the party contesting the agreement; (2) the contesting party was fully informed of the other party’s worth prior to the agreement’s execution, or had, or should have had, independent knowledge of the other party’s worth; and (3) a waiver by the contesting party is set forth.” Rosenberg v. Lipnick,377 Mass. 666 , 672 (1979).

In determining whether an agreement was fair and reasonable at the time of execution, “reference may appropriately be made to such factors as the parties’ respective worth, . . . ages, . . . intelligence, literacy, business acumen, and prior family ties or commitments.” Rosenberg v. Lipnick, 377 Mass, 666, 672 (1979). An agreement, even a one-sided agreement that leaves the contesting party with “considerably fewer assets” and imposes a “far different lifestyle after divorce” than she had during the marriage, is fair and reasonable unless “the contesting party is essentially stripped of substantially all marital interests.” DeMatteo v. DeMatteo, 436, Mass. 18, 26 (2002). Where an agreement is valid at the time of execution, a judge must take a second look at its provisions at the time of divorce. Id. at 34-35. At that time, the agreement will be enforced “unless, due to circumstances occurring during the course of the marriage, enforcement . . . would leave the contesting spouse ‘without sufficient property, maintenance, or appropriate employment to support’ herself.”

Fighting against a Premarital Agreement

Did you get a prenuptial agreement drafted before you were married, whether it was 2 years ago or 20 years ago?  Most people think that when they draft a prenuptial agreement (aka “premarital agreement”) the other party has no leg to stand on to fight the agreement if the parties’ marriage ends in separation or divorce. Depending on the agreement and the circumstances surrounding the agreement this is not necessarily true. In the case Pisano v. Pisano, 13-P-1758, the parties were married for twenty years. At the time of their marriage, both parties were in the entertainment business and wanted to protect their assets. The parties specifically agreed that no alimony would be exchanged “unless one party would become a public charge”.  The issue of whether the prenuptial agreement was valid and enforceable initially came about in the divorce case.

One of the issues in this case was whether alimony was truly waived by the language in the prenuptial agreement, and if alimony was not waived what sources of income would the court consider when determining the amount of alimony paid to the Husband.

The Court determined that the parties intended that certain property was not going to be considered in the determination of alimony as well as any income derived from that property, because when the parties made the agreement they intended to protect certain property. This limited the sources of income the Court could consider in determining sources of income for alimony. The Husband received alimony payments while the case was pending and the Court agreed with the Husband that he was not required to pay back the alimony he received.

The last issue before the Court was whether the Husband was required to help make payments on the $100,000 loan the Wife took out to pay for various expenses during the marriage including helping out the Husband’s three oldest children who were not born from the marriage and college expenses for the parties’ son. The Court determined that the Wife voluntarily took out the loan in her name and thus the Husband was not required to help make repayments on the loan. The Trial Court ordered the Husband to pay some past child support for the parties’ son therefore in the Court’s eyes if he had to repay the loan that would be double dipping.

Recording a prenup

A premarital agreement may be recorded which will notify creditors of the existence of the contract.  This is important in cases where spouses which to remain free from liability from the debts of his or her spouse.

For more information on premarital contracts, contact our premarital agreement attorneys and divorce experts today.  We have drafted countless premarital agreements and can discuss your options with you at your convenience.

Our Boston prenuptial agreement lawyers serve all of Middlesex, Suffolk, and Bristol County, including the Boston, New Bedford, Fall River and Taunton courthouses.  We also serve all courts in Plymouth County including the Family and Probate Courthouses in Plymouth and Brockton.  We have two office locations in New Bedford and Boston for ease of meeting.



Client Review

"My experience with W&F has been very positive. David has proven himself to be a skilled negotiator & litigator."
Ryan G.

/* AVVO Script */