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Pre-Nuptial Agreements
A Pre-nuptial Agreement (sometimes called “Antenuptial Agreement” or “Premarital Agreement”) simply stated is a “contract made before marriage between parties in contemplation of their marriage whereby property rights and interests of either or both of them are determined and/or where property is secured to either or both of them or to their respective children” (Black’s Law Dictionary, Copyright 1957 West Publishing Co.). Basically then a Pre-nuptial Agreement by whatever name, is an agreement made between prospective spouses to fix their various support obligations and property rights before marriage. The agreement is usually executed and signed before marriage because after the marriage takes place, various legal obligations and property rights have already been incurred by virtue of the marriage itself.
In today’s society with so many persons remarrying, especially those with children by a prior marriage, there tends to be a strong desire to protect the prior family from the possible claims of the subsequent spouse. Thus, Pre-nuptial Agreements are becoming more frequently used. These agreements are not “romantic” and it is often awkward for prospective spouses to discuss them especially where wedding plans are being dealt with. However, sometimes it is a prudent and practical decision to consider such an agreement to protect children by a prior marriage or where either of the parties seeks to try to minimize the financial impact of the possible dissolution of the pending marriage in a subsequent divorce action.
Ordinarily the types of issues which are dealt with in a Pre-nuptial Agreement include support obligations between the parties after marriage, the claim of the parties with regard to assets owned prior to marriage and those assets accumulated during the marriage, the ability to freely make a Will without interference from the prospective spouse, the ability to perhaps name beneficiaries to pension or retirement plans, the occupancy of a marital home upon death of either spouse, among other matters.
Pre-nuptial Agreements should be carefully considered and drafted with the idea that full disclosure of income and assets by both parties must be made and written disclosure of income and assets attached to the agreement itself. These agreements also should be fair and reasonable at the time executed and the Massachusetts Courts have suggested the agreement must be fair and reasonable at the time it is sought to be enforced. It is of course very difficult to determine what is fair and reasonable in the future, with different changes in facts and circumstances but that standard seems to be the current one existing in Massachusetts.
It is essential that each party to the agreement have separate legal advice prior to the signing. It should be understood by both parties that to a large degree each must look out for his or her own interests, and this cannot be done if each party does not have separate legal advice. Without separate counsel the agreement may not withstand later challenge.
There is no question that Pre-nuptial Agreements are difficult to discuss freely and openly but the contents and disclosures required for a thoroughly and properly prepared agreement is essential to enforceability by the Courts. Perhaps this topic should be looked upon as one which shows the strength (or weakness) of the relationship. Once a fair and comprehensive agreement has been worked out and executed, this may actually free up the relationship from issues which would otherwise create future friction and dissention. Because the agreement must be freely and voluntarily entered into, it is recommended that discussions regarding an agreement not be undertaken shortly before the marriage is to take place. The shorter time span between the signing of the agreement and the wedding the more likely it is that a claim could be later made that the agreement was one made under duress and without opportunity to consider one’s actions.
A Pre-nuptial Agreement is anything but strewing rose petals on the mattress, but if either or both parties have prior families who may be affected by the marriage and the parties wish to determine their property rights and support obligations before marriage, then serious consideration should be given to the preparation of a Pre-nuptial Contract well before the marriage is consummated.
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