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Premarital Agreements – Fairness Determination


While premarital agreements are becoming increasingly common in today’s society, where people have increasing wealth and assets before marriage, the rules remain stringent to ensure such agreements are fair and reasonable.  In Massachusetts, several cases have set forth the standards for determining whether a premarital agreement is fair and reasonable as of the time of its execution prior to the parties’ marriage.

In Osborne v. Osborne, the Supreme Judicial Court set forth a two-stage test.  The first test involves a determination of whether there is a valid premarital agreement.  For this test, family law practitioners use the Rosenberg test to determine validity which starts with analyzing the circumstances existing at the time of execution of the prenup agreement, including whether the agreement contains a fair and reasonable provision so that the agreement is not so one-sided as to essentially strip the contesting party of all marital rights; whether the contesting party was fully informed of the other party’s financial worth prior to the agreement or constructive knowledge of the other’s worth; and whether the agreement set forth a waiver of rights.

The essence of the law as it relates to whether the contesting spouse was fully informed of the other party’s financial condition at the time of execution of the agreement does not require a precise understanding of the financial position.  Rather, the test is one of substantial fairness in light of the situation existing at the time of the execution of the agreement and whether an intelligent, competent person did have or should have had a general, adequate and sufficient knowledge of the other’s worth to make an informed decision as to whether they wished to consent to the terms of the proposed premarital agreement.

Next, the ordinary questions of validity of contracts must be asked, including whether the agreement was procured by fraud, coercion, forgery, misrepresentation, duress, whether there is adequate consideration (i.e. give and take) for the agreement, and whether the parties had the mental capacity to enter into the agreement.

It is also extremely important that both parties have their own, independent counsel advise them as to all aspects of the agreement.

For more information about premarital or antenuptial agreements, contact our office today by telephone or email.

Our firm serves Boston as well as all courts in Bristol County, including the 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.

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