Massachusetts Divorce and Family Law

Premarital Agreements - also referred to as prenuptial or antenuptial contracts.  A contract between individuals contemplating marriage which may alter the legal result of creditor debt collection or divorce.

The purpose of a premarital agreement is to allow the parties to retain their designated property or right of action owned at the time of the marriage and to limit the claim of either in the estate of the other upon death.  The contract must be fair and reasonable at the time of execution and not unconscionable at the time of enforcement (e.g., not stripping substantially all marital interests).

A premarital agreement must be in writing and should contain a sufficiently clear description of the property affected by the agreement.  In order to be binding on the creditor of either party, the premarital agreement must be recorded (pursuant to M.G.L. c. 209, §26).  If the premarital agreement is not so recorded then it is binding only as between the parties, their heirs and their personal representatives.

Massachusetts courts have enforced premarital agreements when equitable; there has been no deception, overreaching, or fraud in the procurement; and the terms of the contract are clear and definite.  There must be full and fair disclosure by each party regarding their net worth and the agreement must be fair and reasonable at the time of its execution.  That is, the disclosure of assets must be sufficient so that the opposing party may reasonably decide whether the agreement should go forward.  It is prudent for both parties to consult with independent attorneys during the negotiation and execution process; to include schedules revealing the parties' property and financial interests at the time of execution; and to propose the premarital agreement well in advance of the marriage date.

When one of the parties requests the Court to enforce the premarital agreement it will be evaluated as to whether it was fair and reasonable at the time of its execution given the parties' ages, intelligence, literacy, business sense, and prior family ties and commitments.  The contract need not be "equal" to be fair and reasonable when challenged - however, it cannot be unconscionable at the time of enforcement.