Money and communication are often two of the top reasons people get divorced. While Prenuptial or Postnuptial Agreements are not for everyone, negotiation of the terms of these agreements can provide an opportunity for couples to openly discuss finances and to plan for the future.
What is a Prenuptial Agreement and Why Might I Want One?
A prenuptial agreement is a contract entered into by two people before they marry in which they define their intent for disposition of their separate and joint property ownership interests in the event of the death of either party or divorce, after the marriage has taken place. Other typical items, such as spousal support, may also be addressed in the prenuptial agreement. Some of the most common reasons for entering into a prenuptial agreement are to keep separate a premarital or expected future inheritance, protect the accumulated wealth of one or both parties prior to the marriage, and to protect the inheritance rights of one or both parties’ children from a prior marriage. Prenuptial agreements also allow couples to clarify their intentions and expectations as well as their rights in the event they terminate their marriage. Prenuptial agreements are recognized by statute in Massachusetts.
What is a Postnuptial Agreement and Why Might I Want One?
A postnuptial agreement is a contract created by spouses after they marry that typically addresses the ownership and management of financial assets and debts both during the marriage and in the event of divorce or death of one of the spouses. The postnuptial agreement can also address the spouses’ intentions regarding management of earnings and income during the marriage and whether there will be waivers of or spousal support as defined in the agreement in the event of divorce. Postnuptial agreements are not recognized by statute in Massachusetts, but there is case law that outlines factors and standards for enforceability. A postnuptial agreement is not a means to plan for divorce. Instead, its purpose is to settle financial concerns and tensions between the spouses, thereby strengthening and stabilizing the marriage.
Can Child Support or Parenting Issues Related to Living or Future Children be Addressed in a Prenuptial or Postnuptial Agreement?
Yes, but in the event either party seeks to enforce those provisions, a court will not be bound by them because the children were not parties to the agreement and parents may not bargain away their children’s rights. As a matter of public policy, the state always has jurisdiction over minor children.
What are the Criteria for Determining Whether a Prenuptial or a Postnuptial Agreement will be Enforceable by a Court?
Prenuptial and Postnuptial Agreements:
- It is very important that both parties be represented by individual counsel throughout the negotiations of the terms of the agreement to ensure that neither party had an unfair advantage over the other party.
- There must be an absence of fraud, duress, or coercion in obtaining consent to the agreement.
- All assets, liabilities, and income must be fully disclosed prior to execution of the agreement.
How Does the Fair and Reasonable Standard Differ for Prenuptial and Postnuptial Agreements and Who Has the Burden of Proof?
In addition to the above criteria, the court must determine if the prenuptial agreement was fair and reasonable at the time of execution and whether it is fair and reasonable at the time it is sought to be enforced. A prenuptial agreement can be deemed fair and reasonable at the time of execution even if it turns out that enforcement of the agreement significantly benefits one party more than the other so long as enforcing the agreement would not strip the other party of all of his or her marital interests, leaving that party unable to support himself or herself. The burden of proof is on the party contesting the enforceability of the prenuptial agreement, not on the party seeking to enforce it, and the “fair and reasonable” standard applied by judges is not very stringent.
In addition to the above criteria, the court examines whether both parties knowingly and explicitly waived their marital rights to support and to an equitable division of assets in the event of divorce and whether the postnuptial agreement was fair and reasonable at the time of execution and at the time of divorce. Courts scrutinize a postnuptial agreement more carefully than a prenuptial agreement when determining if the agreement is “fair and reasonable” at the time of the divorce, because parties to a postnuptial agreement are already married and entering into a postnuptial agreement with the intent to stay married and thus, do not bargain as freely as fiancées may since a fiancée may call off the marriage if he or she does not wish to sign the prenuptial agreement. The burden of proof is on the spouse seeking to enforce the postnuptial agreement, making enforcement more challenging than a party seeking to enforce a prenuptial agreement.