The Do’s and Don’ts of Prenuptial Agreements

Unfortunately, the negative connotation frequently associated with prenuptial agreements deters many couples from discussing the substantial legal benefits of premarital contracts. Many legal professionals believe that these contracts are important because they can address potential issues such as debts, financial planning, interfaith disputes, and property division in the event of death or divorce, which does three main things.

First, it opens up those lines of communication before the marriage ever takes place. Where the ability to communicate openly and honestly is one of the most important base requirements to having a marriage that lasts through the years, the ability to see how you communicate about some not-so-easy subjects can tell you quite a bit. Second, and this is extremely important if you have children from a prior relationship; it allows you to keep certain assets separate so you can ensure that they are passed down to your children. Third, if you do end up getting divorce, it can help make the process simpler and less complicated as it helps eliminate some of the conflict that can usually take place when negotiating property division, especially when it comes to property that was brought into the marriage.

However, it may be difficult to reap these benefits if the prenup is not executed properly or does not contain specific legal terminology that is necessary to make it harder for your spouse to argue later should not be valid. Discussing the do’s and don’ts of prenuptial agreements with an experienced family lawyer can help you prepare for the legal and financial implications of marriage. With over 35 combined years of exclusive family law experience, our dedicated team can help you draft a fair and valid premarital contract that protects your future.

DO: CONSIDER YOUR MARITAL RIGHTS AND THE POTENTIAL BENEFITS OF PRENUPTIAL CONTRACTS

Marriage often changes your real estate, personal property, and financial rights. Therefore, many couples preparing for marriage use prenups to modify, enhance, or negate many of the default legal implications of marriage. Antenuptial settlement agreements typically allow couples to enjoy the benefits of marriage while creating legal relationships that work for their lifestyles after the date of their marriage. You can address any or all of the following topics in a marital contract under Massachusetts General Law, Chapter 209, § 25:

• Default titles and legal ownership of homes, businesses, and other investments
• Reciprocal life estates, wills, trusts, life insurance policies, and healthcare proxies
• Spousal support and property distribution upon death or divorce
• Financial protections for children from a previous relationship (i.e. protecting their inheritance)
• Certain child-related matters such as interfaith rearing agreements
• Ownership and responsibility for debts and assets
• Other issues involving similar rights and personal obligations

Individuals with children from previous relationships, who have a high-net-worth, already have trust funds established, or hold property in their name individually or with another person whom is not your future spouse should definitely discuss executing a prenuptial agreement with one of our family law attorneys, as people in these specific circumstances tend to benefit significantly from these contracts.

DON’T: DISCUSS CHILD SUPPORT OR SET CUSTODY SCHEDULES IN A PRENUP

It is important to avoid including any provisions related to child custody and support in a prenup. Only the courts may enter enforceable custody and visitation orders after determining the best interests of the child based on Mass. Gen. Law, Chap. 208, §31. Additionally, the Commonwealth enforces child support minimums calculated based on legal guidelines and joint parental obligations.

Couples may draft parental responsibility plans with proposed custody, visitation, child-rearing, and support agreements when they are separating, but parents should not include these terms in a prenup. The Court will not even consider the terms related to child custody within a prenuptial agreement and can, in some circumstances, causing the court to invalidate the entire agreement.

DO: CONSIDER THE FUTURE DURING ANTENUPTIAL SETTLEMENT NEGOTIATIONS

If you have done the difficult work of asking your partner about a prenup, also consider addressing uncomfortable issues now to avoid contentious marital disputes in the future. Our prenup attorneys typically encourage couples in our area to discuss the following terms in antenuptial settlements:

• Careers and educational goals
• Faith-based activities and expectations
• Marital roles, although this is very case specific and lifestyle choices are not typically considered by the Court if those terms are sought to be enforced later
• Financial accounts
• Savings goals and potential debts
• Marital health considerations (i.e. counseling and therapy)
• Notice requirements if filing for a divorce
• Differences in property division if termination of the marriage happens via death or divorce
• Rental income earned on previously held property
• Inheritances

Couples may reduce their chances of marital discord by addressing potential future financial, family, and interfaith issues. Conflict surrounding these matters frequently lead to divorce. Discussing these topics now and coming to agreements on them can help improve your marriage going forward.

DON’T: EXECUTE A PRENUP WITHOUT INDEPENDENT LEGAL COUNSEL

One of the biggest mistake that lawyers without enough family law experience make is assuming prenups follow traditional contract law. They do not, and couples must execute prenuptial settlements in consideration of state domestic relations laws. Failure to execute premarital contracts without meeting conditions a court will consider as mandatory if having to decide whether the prenuptial agreement is valid includes, but is not limited to, whether there was a full disclosure of assets and liabilities, whether the terms of the agreement were fair and reasonable at the time they were entered, whether the agreement was entered freely and voluntarily, and whether each person fully understood what they were potentially giving up within the prenuptial agreement. If a Court finds that these requirements were not met, a judge may find that the prenup is invalid and unenforceable. Ensuring that both parties have independent legal counsel when reviewing the terms of the prenuptial agreement help to prove that both fully understood their rights when executing the contract. Because our team has 35 combined years of experience handling family legal matters, the attorneys at O’Connor Family Law can explain the do’s and don’ts of prenuptial agreements and prepare a contract that fits your needs.