By: Jennifer Silva, Esq.
Usually, people enter into Prenuptial Agreements prior to their marriage with the goal of saving the considerable time and expense that is associated with a fully- litigated divorce by establishing the division of assets and alimony obligations that will be put in place in the event of a divorce. However, at the time of a divorce, if the Prenuptial Agreement is contested by one party, the Court may determine that the Prenuptial Agreement is not enforceable. Some of the reasons that the Court may determine that the Prenuptial Agreement is not enforceable are:
1) The Prenuptial Agreement was not “fair and reasonable” at the time of execution.
A Prenuptial Agreement will not be enforceable if, at the time of execution, the agreement essentially stripped a party of "substantially all marital interests" so that the terms of the agreement essentially vitiated the "very status of marriage."
2) The Prenuptial Agreement was not “fair and reasonable” at the time of divorce.
At the time of divorce, the Prenuptial Agreement may not be enforced if the enforcement of the Prenuptial Agreement would leave one spouse without sufficient property, maintenance or support due to circumstances that occurred during the parties’ marriage. This “second look” analysis is important to ensure that the enforcement of the Prenuptial Agreement has the same effect at the time of the divorce as the parties intended at the time of the execution of the Agreement.
3) When the Prenuptial Agreement was executed, the parties were not fully informed of each other’s financial circumstances.
In order for the Prenuptial Agreement to be enforceable, the Court has held that the parties must be fully informed of the other’s worth or had/should have had independent knowledge of the other’s worth.
4) The Prenuptial Agreement did not include a valid waiver of rights.
In Massachusetts, the Court has held that the Prenuptial Agreement must contain a valid waiver of rights. In determining whether this requirement is met, the Court considers whether the parties were represented by counsel, whether the parties had adequate time to review the agreement, whether the parties understood the terms of the agreement and their effect, and whether the parties understood his/her rights in absence of the agreement. Therefore, it is imperative that a person who wishes to execute a Prenuptial Agreement with his/her future spouse contact an attorney well in advance of their wedding date, as it may take a few months to negotiate the terms of the agreement, exchange financial documentation, review the terms of the agreement and their effect, and discuss the statutory marital rights that the parties would have in the absence of the Prenuptial Agreement.
To speak with a lawyer about divorce or other family law matter, contact Mavrides Law in Boston, Newton, or Quincy, MA. To schedule an initial consultation, call 617-723-9900 or contact the firm at email@example.com