Clauses and Your Prenup in Massachusetts

If you are considering a prenuptial agreement in Massachusetts for you and your fiancé, it is important that you understand the relevant rules around these agreements. With so many couples divorcing over issues related to money, a prenuptial agreement can be a great way to establish clear expectations for your marriage. You may even be considering a step further to lay out your expectations for your fiancé’s behavior during the marriage, but you need to be careful when contemplating such “lifestyle clauses” so that you do not accidentally invalidate your prenuptial agreement or enter into a marriage thinking that certain clauses will be enforced if they won’t. Here is what you need to know about the intersection of Massachusetts law and lifestyle clauses in prenuptial agreements.

Types of Clauses in Massachusetts Prenuptial Agreements

Prenuptial agreements are primarily entered into to protect assets in case of a divorce. Typical clauses in prenuptial agreements include:

  • Identification of separate property versus marital property – The agreement may provide very specific details about which property will be considered marital property vs. separate property.
  • Instructions on the division of property – The prenuptial agreement will likely state how property will be divided in the event of a divorce.
  • Spousal support – The agreement may also state whether spousal support (in Massachusetts, we use the term "alimony") will or will not be paid if the marriage ends in divorce.

Reasons to Enter into a Prenup

There are several reasons why people may choose to enter into a prenuptial agreement. While this can feel like an emotional issue, the financial implications may be stronger. Common reasons to enter into a prenuptial agreement include:

  • To protect your inheritance or your interest in a trust
  • To protect assets intended for children of a previous relationship
  • To protect your interest in a family business
  • To state how your premarital debts will be handled during the marriage
  • To protect a piece of property purchased prior to marriage (like a house, condo, etc.)

Requirements for Prenuptial Agreements in Massachusetts

To create a valid prenuptial agreement in Massachusetts, you will need to meet the following criteria:

  • The agreement is signed by both parties
  • The agreement is reasonable and fair
  • You and your fiancé provide a full and fair financial disclosure about all of your property, assets, and liabilities

It is recommended that each spouse has their own lawyer to advise them of their rights and how they will be affected if they agree to the terms of the prenup.

Prohibited Clauses in Prenuptial Agreements in Massachusetts

Lifestyle clauses are not specifically prohibited in Massachusetts prenuptial agreements. In fact, the only type of clause that is prohibited prenuptial agreements, including those in Massachusetts, is a clause that would cause a child to be deprived of child support that he or she would otherwise be entitled to, or one that otherwise contracts away the rights of a child- like child custody.

Lifestyle Clauses in Prenuptial Agreements

A lifestyle clause is different than the other common clauses found in prenuptial agreements because it is not focused on a financial aspect of the marital relationship. Instead, it is focused on behavior of the soon-to-be spouses. However, there may be financial penalties based on these behaviors. The most common so-called lifestyle clauses are infidelity and social media clauses.

An infidelity clause in a Massachusetts prenuptial agreement generally states that if one of the parties cheats on the other during the marriage that they will be subject to some type of penalty, such as a financial penalty of a certain amount of money or a denial of spousal support if divorce occurs.

A social media clause generally establishes guidelines for what types of social media comments and activities the spouses can and cannot participate in during the marriage, such as not interacting with others through direct messages, not talking negatively about their spouse on social media profiles, or not posting certain types of content on these platforms. If one of the spouses breaks these rules, he or she may be subject to financial penalties.

Some couples may want to include such provisions in their MA prenuptial agreements because it helps them identify their expectations of the marriage. Other common lifestyle clauses may include:

  • The number of pounds a spouse can gain during the marriage
  • How future children of the spouses will be raised
  • How often the parties go out
  • Details about relationships with in-laws

Enforcing a Prenuptial Agreement in Massachusetts

Besides making sure that the basic requirements of prenuptial agreements and contract law were properly followed, Massachusetts courts will look to see whether the agreement was fair and reasonable at the following pivotal times when deciding whether or not to enforce a prenuptial agreement:

1. At the Time of Signing

The court will look to determine if the agreement was fair and reasonable when the parties signed the agreement. The point of a prenuptial agreement is to contract around state default rules for divorce, so a prenuptial agreement does not need to give the spouses the same type of distribution of assets as they would under the typical state rules. Prenuptial agreements are also commonly used when there is a large disparity of wealth between the spouses. They can be largely one-sided and still be upheld if the agreement passes the "fair and reasonable" at the time of signing and at the time of divorce standards. The less wealthy spouse may have a very different lifestyle after the marriage than during it. However, if the spouse contesting the enforceability of the prenuptial agreement is stripped of nearly all of their marital assets, a judge has the legal authority to find that the agreement is not fair and reasonable at the time of enforcement.

2. At the Time of Divorce

The court will also look at whether the agreement is fair and reasonable when the couple divorces under what is called the “Second Look Doctrine.” The court can choose not to enforce the agreement if it would leave the spouse contesting it without sufficient property, maintenance, or employment to support himself or herself. Some examples when this may occur include:

  • The contesting spouse experiences unanticipated mental or physical deterioration
  • The contesting spouse has no appreciable assets at the time of divorce
  • There was a change in circumstances beyond what the parties considered when they executed the agreement

If the court finds that the agreement is unconscionable at the time of divorce or that it does not have the “same vitality” that it did when the couples executed the agreement, the court may choose not to enforce it.

Enforcing a Lifestyle Clause

Even if the rest of the prenuptial agreement is enforced, courts in Massachusetts may be hesitant about enforcing these types of clauses. This is because of two potential problems. First, it may be hard to prove that the spouse violated the clause. For example, how can the other spouse realistically prove the other spouse was cheating if he or she doesn’t admit it, without actual evidence? Second, enforcing them may result in them being unfair or unreasonable.

To contend with the first problem, it is important that parties carefully draft such provisions so that they can be objectively understood. For example, if there is an infidelity clause, there should be language that explicitly defines “cheating.” If there is a social media clause, the prohibited actions should be carefully stated so there is no ambiguity. The parties should discuss their expectations, so they understand each other. Simply talking about these expectations beforehand may help them accomplish their goals even if the clause itself does not wind up being enforced. The parties should also consult with their own lawyer about any potential problems related to enforcement.

To prevent the entire agreement not being enforced, lawyers can include a severability clause in the agreement that states that if any provisions contained in the agreement are found to be illegal, invalid, or unenforceable, the rest of the agreement will remain intact. This is one of the many advantages of working with an experienced Massachusetts prenuptial agreement lawyer.

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