Under many circumstances, a prenuptial agreement or a postnuptial agreement can be essential to keep separate premarital assets, business interests, and investments. These agreements can also protect family inheritances, and preserve the interests of children from a previous marriage, honoring estate planning intentions and maintaining financial security.

Prenuptial and postnuptial agreements can further help set financial expectations in marriage and establish a solid foundation for the future. Such agreements, recognized and enforceable in Massachusetts, provide a proactive approach to addressing issues that may arise during marriage or in the event of separation, divorce, or death. By defining property division, spousal support, and other financial matters, prenuptial and postnuptial agreements can offer reasonable expectations, minimize conflicts, and promote open communication between married partners.

Despite the clear benefits, however, a poorly handled or overreaching prenuptial or postnuptial agreement can cause friction between spouses and cause marriage to sour. For these reasons, such agreements should be handled with sensitivity and tact. With careful planning and thoughtful communication, a well-crafted prenuptial or postnuptial agreement can strengthen the marital partnership instead of causing resentment.

What Are Prenuptial and Postnuptial Agreements?

A prenuptial agreement, often referred to as a “prenup,” is a legally binding contract entered before marriage. This document primarily details how assets and liabilities would be divided in the event of divorce, separation, or death. It can also set forth provisions for alimony/spousal support, and for how spouses deal with income sharing and expenses during the marriage. By establishing these details upfront, a prenuptial agreement can allow you and your fiance to keep some or all of your respective financial interests separate and to clarify expectations about property rights, income, and expenses during the marriage.

A postnuptial agreement, or “postnup,” is similar to a prenuptial agreement, but entered after marriage. It serves the same purpose of defining how assets and debts would be divided if the marriage ends. Postnuptial agreements are useful when a spouse has had a significant change in financial situation, such as a substantial inheritance, business acquisition, or change in income. A postnuptial agreement allows you and your spouse to revisit and revise the terms of your financial relationship as circumstances evolve throughout your marriage.

Both prenuptial and postnuptial agreements can serve as important tools in preserving separate assets and clarifying financial responsibilities within marriage. These agreements allow you to determine how your property and assets will be divided in the event of divorce, separation, or death, rather than leaving these decisions uncertain and up to the discretion of a court.

Prenuptial and postnuptial agreements can not only define individual interests but can also promote harmony and understanding within marriage. Beyond asset division, these agreements can also set expectations for the allocation of income, expenses, and savings, thereby playing a pivotal role in mitigating potential conflicts and disputes between spouses. By clearly outlining the financial terms, you can prevent lengthy, contentious, and expensive legal battles if you decide to part ways or if one of you dies.

Creating Prenuptial and Postnuptial Agreements

To make a prenuptial or postnuptial agreement enforceable in Massachusetts, you must ensure the following:

You and your fiance or spouse must fully disclose your respective financial assets, business interests, expectancies, income, and liabilities. This financial information will be contained in the schedules attached to your agreement.
Each of you must independently engage your own attorney to make sure that you receive advocacy and legal advice, to make sure that you understand all of the terms of the agreement, and to avoid a conflict of interest.
Each of you must read every line of the agreement.
There should be documentation that neither of you were coerced or entered the agreement under duress. In the case of a prenuptial agreement, one indication that you signed knowingly and voluntarily is that your agreement contains the names of your separate attorneys. Another is the timing—a judge may consider a prenuptial agreement signed “on the eve of marriage” as inherently coercive. It is therefore critical that you sign the agreement at least several weeks, and ideally months, before marriage.
Finally, your agreement must be “fair and reasonable” at the time of execution and when sought to be enforced.

Prenuptial and postnuptial agreements should not be a sum zero game. Rather, they should be about creating a framework for your and your partner’s mutual benefit and providing you both with clear expectations and security for the future. While negotiating a prenuptial or postnuptial agreement, it is important to maintain an atmosphere of respect and mutuality. Interest-based negotiation methods, such as Mediation or Collaborative Law, can facilitate a more cooperative process. These approaches promote open communication, allow for more personalized solutions, and can help avoid tension and conflict.

Common Misconceptions About Prenuptial and Postnuptial Agreements

One common misconception about prenuptial and postnuptial agreements is that they are only for the wealthy. While true that such agreements are often associated with high-net-worth individuals seeking to protect substantial assets, they are equally beneficial for anyone who wishes to establish clear financial guidelines in a marriage. Such agreements can safeguard property, personal belongings, and family heirlooms, and shield one party from the other’s debts. So regardless of one’s financial status, having a prenuptial or postnuptial agreement can help provide peace of mind.

Another common misconception is that asking a fiance or spouse for a prenuptial or postnuptial agreement is showing them mistrust or anticipating divorce. In reality, when handled appropriately, these agreements can promote open and honest communication about financial matters. They can encourage partners to discuss and plan their financial future together, helping to foster trust and mutual understanding. Rather than forecasting divorce, a prenuptial or postnuptial agreement is a financial planning tool designed to minimize potential conflicts and ensure predictable arrangements should the marriage dissolve.

Enforceability of Prenuptial and Postnuptial Agreements

In Massachusetts, both prenuptial and postnuptial agreements are generally enforceable, provided they meet certain legal standards:

They must be in writing and voluntarily signed by both parties.
They require full disclosure of all assets and liabilities.
Each party must have independent legal counsel.
The agreements must be fair and reasonable at the time they were executed and must not leave one party impoverished.
In the case of a prenuptial agreement, each party must have enough time before the marriage to negotiate, consider terms, and consult with counsel.

Massachusetts courts have discretion to invalidate a prenuptial or postnuptial agreement under certain circumstances. If an agreement was executed under duress or coercion or too close to the time of the marriage, or if there was fraud or misrepresentation involved, a court may reject such agreement as unenforceable. Also, if the terms of the agreement are found to be unconscionable or grossly unfair at the time of divorce, the court may choose not to uphold it. To ensure enforceability, it is essential that your prenuptial or postnuptial agreement is carefully crafted with the guidance of experienced legal counsel.

Because postnuptial agreements are entered during as opposed to before the marriage, Massachusetts courts subject them to a higher degree of scrutiny than prenuptial agreements. This is because if a premarital agreement is unacceptable, the remedy is simply to put off or cancel a marriage. In contrast, married couples are not contemplating divorce when they enter a postnuptial agreement. During marriage, because partners must be loyal to each other, they are not bargaining for the same freedom that they would have if they were separating. Thus, a postnuptial agreement is generally harder to enforce than a prenuptial agreement.

Engaging an experienced family law attorney is indispensable when contemplating a prenuptial or postnuptial agreement. Nussbaum Family Law LLC can help you negotiate an effective, enforceable prenuptial or postnuptial agreement, or assess a pre-existing agreement to determine whether it is enforceable. Through negotiation, mediation, mediation support, or collaborative law, we can help you make the process respectful, mutual, and inclusive so that you and your partner can start or continue your marriage successfully while still protecting important interests.

Nussbaum Family Law, LLC, located in Sharon, offers experienced prenuptial and postnuptial agreement services to residents in cities and towns such as Canton, Foxborough, Stoughton, and other Norfolk County areas, as well as Easton and Mansfield, among other Bristol County areas.