Prenuptial agreements are enforceable in Massachusetts. However, prenuptial agreements must meet certain requirements. Most of these requirements boil down to two questions: first, whether the agreement was entered into voluntarily and second, whether the agreement is fundamentally fair.
A prenuptial agreement must be (1) in writing and (2) signed by both parties. When it comes to prenups, an oral promise just isn’t sufficient. While some types of contracts are enforceable without a writing, the Statute of Frauds requires written memorialization of prenuptial agreements.
A prenuptial agreement should be negotiated and signed well in advance of your marriage date. This ensures that prenups are not hastily signed or sprang on either party. While there is no specific timeframe in Massachusetts, at least one-week prior to “I do” is recommended. If an agreement is signed right before a wedding, courts may be suspicious that a party was pressured into signing so that the wedding would go through.
A Massachusetts court found unenforceable an agreement signed by a seven-months pregnant bride only days before her wedding. Schechter v. Schechter, 88 Mass.App.Ct. 239 (2015);
Both parties must have had the opportunity to hire their own legal counsel to review the prenup. Opportunity does not mean that both parties must hire counsel. Rather, both parties must be advised of their right to counsel Eyester v. Pechenik, 71 Mass. 773 (2008).
Should either party choose to forego counsel, the prenuptial agreement should contain a waiver clause.
Importantly, the same attorney cannot advise both parties. This is because each party has unique (and typically conflicting) interests.
If either spouse was coerced into signing, a judge will refuse to enforce the agreement. Under no circumstances should you feel forced into signing an agreement. “Duress” is a broad term.
Before signing a prenup, the betrotheds must exchange full and accurate financial disclosures. A party may not hide assets or keep any secrets. It can be fatal to the agreement if the Judge finds that assets were not accurately or fully disclosed.
The terms of the prenup must be fair and reasonable at the time of the signing and not unconscionable at the time of enforcement.
If the fairness of an agreement is called into question, the court will consider the parties’ respective financial health, education levels, and ability to support themselves. The court may also consider whether counsel was involved in negotiations, whether the parties both understood the agreement and each other’s finances. As a baseline for comparison, a court may look like the division of assets and support pursuant to the discretionary factors set out in G. L. c. 208, Section 34.
The Court has stated that the Pre-Nuptial agreement should be enforced by a Judge unless enforcement would leave the contesting party without sufficient property, maintenance or appropriate employment. Dematteo v. Dematteo, 436 Mass 18 (2002)
The appeals Court has upheld a lower court’s invalidation of the prenup when the Court found that there was a change in circumstance beyond what the parties contemplated when they executed the agreement. Kelcourse v. Kelcourse, 87 Mass. App. Ct. 33 (2015)
The lessons learned through the above cases is that disclosure, facts, representations made in the agreement as well as the actual impact of enforcing the agreement affect the Court’s determination of the validity of an agreement. If you want your pre-nuptial agreement to be enforceable, make sure that you meet these requirements.
Need help drafting or reviewing a premarital agreement? To speak with an experienced Massachusetts Family Law attorney, call The Law Office of Wyckoff Nissenbaum at 617-410-6467.