You may think your prenuptial agreement is boilerplate and ironclad. You and your spouse discussed the terms, drafted a quick agreement, and signed it. Perhaps you even created your prenuptial agreement to the letter of the law, played by the rules, and checked every box. So, is your prenuptial agreement fool-proof? Rarely. Is it guaranteed? Never!
A Massachusetts Court can find a prenuptial agreement unenforceable for a wide array of reasons, which range from commonsensical to technical. Prenups only offer the intended protection if properly drafted under Massachusetts law, and are fair at the time of signing and enforcement. What does that mean, exactly? Read on...
Here are some reasons an agreement may be invalid in Massachusetts:
The agreement is not in writing.
One of the fundamental requirements for a valid prenuptial agreement in Massachusetts is that it is in writing. Prenuptial agreements must be in writing and notarized. Oral contracts of any kind are difficult to enforce because there is no clear record of the detailed terms or the parties’ actual understanding of the terms and law that will be superseded by these terms.
The Agreement was Signed under Duress or Coercion.
As with any type of contract, a prenuptial agreement must be executed voluntarily by both parties. A party who was threatened or forced to supply his/her signature has a strong chance of getting the agreement thrown out. See #8, on bad timing.
One or Both of the Parties Did Not Have An Attorney Represent him/her.
While Massachusetts does not require parties to be represented by their own attorneys for the agreement to be legally binding, it is strongly recommended. Legal representation not only provides each party with an understanding of how the prenuptial agreement will impact him/her in the event of divorce, a lawyer must also advise the party of the divorce law to which he/she is waiving rights. Prenuptial agreements are meant to represent the separate interest of both parties, and if the judge suspects that one party was unfairly pressured without the benefit of independent counsel, the judge may find that parts or all of the prenuptial agreement are not enforceable.
The "Second Look" Reveals that the Prenuptial Agreement is Unconscionable.
In order for a prenuptial agreement to be enforceable in Massachusetts, it must be fair and reasonable at two times of analysis: first, it must be fair and reasonable at the time it was signed before the marriage; second, it must be fair and reasonable at the time of divorce, when it is requested to be enforced. To determine whether or not the agreement is fair and reasonable at the time of enforcement, a Court will take a “second look” at the time of the divorce to be sure enforcement of the prenuptial agreement will not be unconscionable.
Couples sign prenups as they plan for the future, but without a crystal ball, it's impossible to accurate predict where you will be in your life if and when you get divorced. A second look allows a Massachusetts court to confirm that the agreement has the same vitality at the time of the divorce.
An agreement will not be upheld if one party would be left without sufficient maintenance, property, or suitable employment to support him/herself. A court will consider a prenup unconscionable if, for example, one party would be left with nothing more than a rodent-infested house in need of $300,00 worth of crucial repairs on a $300 per week salary, while her spouse walks away with a successful business and $1.7 million home (see Kelcourse v. Kelcourse 87 Mass. App. Ct. 33 (2015)).
Financial information is false or incomplete.
A couple entering into a prenuptial agreement in Massachusetts must provide "full and fair disclosure" of all financial information. This includes all assets, debts, properties, income, and business interests. Both parties should be prepared to provide appraisals and backup documentation. If one person undervalues or misrepresents assets, or omits information, the agreement will likely be rendered unenforceable.
A prenuptial agreement can address a vast number of topics, from how expenses will be shared to future alimony obligations. Other common examples include how future inheritances will be treated, what property each spouse will be entitled to in the event of divorce or death, and responsibilities for each other’s financial liabilities. The list goes on. A prenup can cover just about any financial aspect of the couple’s relationship; however, no agreement can legally waive or modify child support obligations to which a child would otherwise be entitled.
"Lifestyle" Clauses Are Not Always Enforced.
"Lifestyle" clauses have become popular in the last few years, thanks to celebrity prenups. Many of these prenups contain provisions regarding weight gain, infidelity, and other very specific lifestyle arrangements. Ironically, California refuses to enforce lifestyle clauses, because they violate the state's public policy of no-fault divorce. In Massachusetts, Courts are reluctant to enforce lifestyle clauses because they are difficult to prove and are often not fair or reasonable to enforce.
Timing is everything. A prenuptial agreement should be signed well in advance of the happy day. Not the night before the wedding. While Massachusetts law does not cite a specific length of time, it is important that both parties have ample time to negotiate the terms, review the agreement with independent counsel, make any additional necessary changes before signing. If a court deems that there was not enough time for both parties to do so, and that either party may have been subject to duress or coercion to sign the agreement due to the impending wedding date, the prenuptial agreement may be unenforceable.
In summary, a prenuptial agreement in Massachusetts can be a useful tool for engaged couples who would like to create a clear understanding of their finances and assets. If you are considering a prenuptial agreement in Massachusetts, call Mavrides Law at 617.723.9900, or email us at email@example.com.
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