by Lisa Wilson, Esq.
At a time when couples are giddy with excitement about their pending nuptials, it is very difficult to talk about what happens in the event of a breakup. But, as we all know, with the right to marry comes the right to divorce.
What many of you may not know is that, during a divorce proceeding in Massachusetts without a valid prenuptial agreement, the court has the authority to assign to each spouse all or any part of the estate of the other. A person’s estate includes all property and assets no matter when or how acquired, and without regard to whether the property is individually or jointly owned. This means that your retirement funds, real estate, gifts, the family business, trust interests and inheritances, to name only a few, are all on the table at the time of divorce. In addition, the court may require one spouse to pay support or alimony to the other based on the relative economic circumstances of the parties.
A prenuptial agreement affords couples the peace of mind that their assets are protected, preventing potential post-breakup arguments (and messy legal battles) over who owns what. A prenuptial agreement is also an effective way to limit a surviving spouse’s rights to inherit from the deceased spouse. For example, such an agreement can enable previously married individuals to ensure that their estate passes to the children of their prior marriage.
For those individuals who wish to determine in advance their rights to each others’ estates and their rights to alimony, it is critical to reach an understanding of the terms of a prenuptial agreement prior to marriage. In order for a prenuptial agreement to be valid and binding, four elements must be satisfied. First, there must be full financial disclosure by both parties. You cannot “forget” to disclose some of your assets. Second, you must each attain the advice of an attorney prior to signing the agreement, so that you understand the terms and possible effects of the agreement and also understand your rights in the absence of an agreement. (In this step of the process, you and your partner must use different attorneys.) Third, the agreement must be fair and reasonable at the time it is signed. An agreement in which you receive 100% of the assets and your partner receives –0– is obviously not fair and reasonable. Also, the agreement must be made in contemplation of marriage. If you don’t get married, the agreement is not effective. Finally the agreement must be in writing. Absent a finding by the court that the agreement is “unconscionable,” the agreement will be upheld.
Although it might not feel romantic to consider the need for a prenuptial agreement prior to marriage, the reality is that it is very smart to discuss the division of assets and support when you are not angry, depressed or overwhelmed and in the midst of a divorce. Better to plan ahead and talk about all the “what ifs” prior to rushing to the clerk’s office or the chapel. Once the arrangements are made, you can relax and enjoy planning the rest of your lives together!
Attorneys at Wilson, Marino & Bonnevie, P.C. can assist you with your pre-wedding legal planning. Contact us at 617-64-8090 or