Overview of Prenuptial Agreements in Massachusetts
A prenuptial agreement is a personal deal a couple makes in the event that, at some later point, the relationship does not continue. Such a deal might cover what happens to jointly held property, what happens if either party should die, how future income will become the property of either spouse, whether or not alimony will be paid and what happens to such amounts if either spouse remarries.
In Massachusetts, a simple list of "cut-and-paste" deals from the internet is not sufficient, because Massachusetts does not recognize the idea of a prenuptial agreement as an agreement that cannot be modified. Rather, in Massachusetts a prenuptial agreement, sometimes called a "premarital" agreement, is a contract between "spouses" in the fullest legal sense . Moreover, in many cases courts scrutinize closely any prenuptial agreement, and require a showing of fairness both when it was made and at the time of any divorce. Exceptions are high, and most courts make careful inquiries into whether or not both parties understood the agreement, had the time to consider it, and entered into it willingly.
The rule of thumb in Massachusetts is that a prenuptial agreement is simply a contract between spouses, subject to the laws of contract and the laws that govern what happens to property and income between spouses when a marriage comes to an end. In this sense, there is nothing special about prenuptial agreements in Massachusetts, and they are not seen as ensconced in any kind of special treatment by the legislature or courts.
Requirements for a Valid Massachusetts Prenuptial Agreement
The legal requirements for the validity of a Massachusetts prenuptial agreement are set forth in G.L. c. 208, s. 7. Among these requirements are the following:
Disclosure. The parties to a prenuptial agreement must make "fair and reasonable" disclosures of their respective financial situations, including their income and property. If any property is not disclosed, then it must be show that the spouse seeking to enforce the agreement has not been prejudiced by the lack of disclosure.
Voluntariness. The party against whom enforcement of the prenuptial agreement is being sought cannot have been under any duress or coercion at the time of execution. Some Massachusetts cases have suggested that there must be at least one month’s time between the time the agreement is presented and the date of execution. See Miller v. Kearney, 366 Mass. 802 (1975).
Independent Counsel. There is no express requirement that each party to a Massachusetts prenuptial agreement have his/her own independent counsel at the time of execution. However, the law does require that one party not have the benefit of legal counsel at the time of negotiation and execution unless the party who did have the benefit of counsel caused the other person to realize the above.
Written. The Massachusetts statute also requires that a prenuptial agreement be in writing.
Advantages of Using a Prenuptial Agreement Template
A Massachusetts prenuptial agreement template can save you considerable time and money in preparing an agreement. In addition, it can give you some pretty standard issues that will usually be important to parties. But there are a few caveats: I have researched the internet for Massachusetts prenuptial agreement templates. The benefits of these are that they are free and they can help you understand what is in such an agreement and how one works. Yet, some of these templates I have found are either not Massachusetts law specific or they are not comprehensive and fairly "boilerplate". Of note, Massachusetts has a statutory framework for premarital agreements which must be followed (Massachusetts General Laws c. 209, s. 25-33). For example, if you want your agreement to be either set aside or combined with your divorce decree, your agreement must be signed in front of a notary public or attorney and your witnesses must sign the agreement as well according to Mass General Laws c. 209, s. 25(a). A Massachusetts prenuptial agreement template should be signed as required by the statute and include the required disclosures under the law, and the proper terms for future adjustment of alimony, child support, property distribution and other legal changes in the event of future divorce per the statute which should be the subject of your template.
There is a Massachusetts statute that requires that parties both fill out a financial disclosure sheet at the same time if they are going to enter into a prenuptial agreement on the same day. The statute also requires that a copy of the agreement with the separate dollar amounts included be attached to the financial disclosures. The financial disclosures are not required to be attached later – the attachment is required only when the financial disclosures are filled out and signed at the same time as the premarital agreement. See Mass Gen Laws c. 209 (g). To see a sample of a Massachusetts financial disclosure, click here for a Massachusetts financial disclosure form. A pre-marital agreement template ought to include a financial disclosure template as well, to ensure that the parties are properly completing the requirements of the statute.
These are just a few items that make Massachusetts prenuptial agreement templates tricky and I would recommend that if you’re going to use them, that you hire an experienced Massachusetts prenuptial agreement lawyer to make sure that either your Massachusetts prenuptial agreement template is legally sound and in compliance with the law as it is a statutory contract or that your attorney is fully up to date with current Massachusetts law and requirements for these agreements.
Essential Elements of a Massachusetts Prenuptial Agreement Template
A well-crafted Massachusetts prenuptial agreement template should include several key components, including:
Property Division: The agreement should detail how property – including real estate, bank accounts, and personal property – will be divided in the event of divorce or death. It may also delineate separate property from marital property to clarify ownership before and during the marriage.
Spousal Support: Also known as alimony, spousal support provisions in the agreement outline whether spousal support will be paid, the amount, and the duration. This section may also explain the factors that could modify or terminate spousal support in the future.
Debt Allocation: The agreement can specify how debts will be handled if the marriage ends. This includes who will be responsible for repaying existing debts or assuming new debts that were accrued during the marriage.
Full Disclosure: It is essential that both parties fully disclose their assets and liabilities before entering into a prenuptial agreement. A clause in the template may require that any additional assets or debts acquired during the marriage also be fully disclosed to ensure the agreement remains valid.
Amendments: The template should include a clause that outlines how the agreement can be amended or revoked, as long as both parties consent in writing.
Others clauses are optional, such as those addressing issues like child custody and visitation rights. It is important to remember, however, that any provisions regarding child custody or support do not generally hold up in court.
Our experienced family lawyers can help you create a Massachusetts prenuptial agreement that is comprehensive, legally sound, and tailored to meet your specific needs. Don’t leave your future to chance.
Tailoring Your Massachusetts Prenuptial Agreement Template
Once you find a template that seems to fit, it is important to personalize it. This does not mean just filling in the blanks for names, addresses and dates. Even the most sophisticated templates can be improved by personalizing them to reflect the couple’s particular assets, debts, future plans, financial situation, and objectives. First, it is important to review all of your assets and debts, and determine whether all of them should be included in the prenuptial agreement. Some individuals own a business, and you have to determine whether the goodwill value of the business should be included. What about retirement accounts? If you have a retirement account that has appreciated in the years prior to marriage, you need to determine whether the appreciated value will be considered separate property or subject to division if the parties divorce. Are there any active investments that are really separate property? There are many ways to determine whether appreciated assets are separate property or marital property, depending on the duration of the marriage and other factors. Prior to including retirement accounts in a prenuptial agreement, it may be useful to consult a financial planner for advice on how best to deal with these accounts. For example, should the appreciated portion of the account be kept separate, or should it be equally divided, and if so, how? Second, the spouses’ resources will evolve over time . It is essential to consider whether assets that are acquired during the marriage may be included in the divorce settlement. Can either spouse use income from the other spouse’s assets? Can either spouse use income earned from the investment of the other’s assets? If so, should the divorce settlement specify how income earned from either spouse’s assets will be dealt with? Third, your interests may change over time. For example, what happens if a spouse becomes disabled during the marriage? Is the agreement designed to provide appropriate safeguards and assistance to the wife who plans to have a career when her husband can no longer work because of a disability? Fourth, future children are another important consideration. Some couples choose to include child support terms in the prenuptial agreement, but most prenuptial agreement do not address these issues. Nevertheless, these decisions affecting future children should be given serious consideration. For example, education costs, religious training, and health care needs should be addressed. Finally, a review of the prenuptial agreement should take place every few years to re-evaluate the terms of the contract. The world changes, and your prenuptial agreement should change with it.
Importance of Seeking Legal Counsel
When it comes to prenups, as the old adage goes, an ounce of prevention is worth a pound of cure. So how do you prevent yourself from being in a difficult situation when the time comes for your prenup to be enforced? You get professional advice before the agreement is signed.
Unlike any other contract, a prenup requires you to predict the future. What if you don’t make the money you hope to make? What if you make more than you hope to make? What if someone else makes more than you and you are now in business together? It really is crystal ball gazing, which is why it is so important to seek professional advice that can help you look into the future and determine the pitfalls and issues that need to be addressed.
This does not mean that the use of a prenup template cannot play a role in this process. A prenup template can be very useful to help you understand what kind of merger between your assets and your new spouse’s assets that will occur with your marriage – it allows you to visualize the process. This is important because you have to decide at this point what kind of merger will occur: complete, partial or no merger. Understanding the answer to this question will start you down the right path.
However, the general template is not enough to address all of the unique situations people may face. This is why it is so important to consult with a legal professional who can help you determine the specific terms needed for your prenup. They have the experience necessary to be able to visualize how the merger may play out like a crystal ball. They will be able to caution you about potential future problems and pitfalls. They will be able to draft terms that suit your situation. Most importantly, they will be able to make sure that both you and your future spouse are adequately represented in the prenup process.
Final Steps in Your Massachusetts Prenuptial Agreement
Now that you are on the road to getting your Massachusetts agreement, there are some basic steps to follow for a smooth preparation. Below is a list of tips to consider as you prepare your final agreement:
Review the draft with legal counsel.
If you are using an attorney, you will want to bring any comments or additional provisions back with you the next time you meet with your attorney. If you have no attorney and are working off of a sample agreement, you should just mark the draft up with comments and concerns, and communicate those concerns to your spouse, who can address them with his or her legal counsel.
Decide how you will and when to address the marital residence.
You need to provide the full address of the property.
If you are renting, you should include the property address in the agreement, along with the termination date, if any, of your tenancy. You may want to provide that it not be renewed unless agreed upon by both parties.
Determine when the final agreement will be signed and where it will be kept.
It is best practice to sign the agreement before the wedding. The parties should work together with counsel to ensure that the agreement is done well before the wedding. While you may not want to discuss the agreement (or the possibility of divorce) in the weeks leading up to the wedding , you should seek to ensure that you and your partner are comfortable with the terms of the agreement before you sign it. If the agreement has not been signed at least the day before the wedding, many attorneys would recommend canceling the wedding until you do. If you go into marriage with the agreement signed and in place, it is much more likely that the marriage will be contented.
The agreement must be signed by both parties, preferably before a notary public. The notary needs to write out the jurat to get proper signatures, and simply having the notary public stamp the agreement is not sufficient. A jurat is not mandatory in Massachusetts, but many financial institutions will not accept a prenup without the jurat.
The agreement must then be notarized and recorded in the registry of deeds for the county where the real estate is located, or if either spouse is not a resident of the state or there is no real estate, in the registry in the county where the divorce is filed.