Tag Archives: prenuptial agreements

10 Things to Consider Before Signing a Prenuptial Agreement

By Attorney Debra L. Smith of Watertown, Massachusetts.

The evening was exactly how you always dreamed it would be.  You had hoped your significant other would propose marriage on a warm summer night at a fancy restaurant.  Dinner felt magical as you both sat on cushy chairs, drinking glasses of your favorite wines with a tasty dinner.  Gleaming candles atop a crisp, white tablecloth reflected on the nearby water.  As attentive waiters served dessert, your soon-to-be spouse gave you the ring you had been eyeing.  It was a special evening you will never forget.

The next day, your fiancé called with a somewhat less romantic proposal: that a Prenuptial Agreement is needed to be signed before you got married.

So, what do you need to consider for a Prenuptial Agreement?  Most states require the Prenuptial Agreement to be in writing and for both individuals to retain separate legal counsel and to fully disclose their financial assets and liabilities.  In order to reach an agreement, you could use mediation, collaborative law or traditional negotiation.

So what are 10 things to consider before signing a Prenuptial Agreement?

1. Hire a competent attorney who is experienced in the current laws in your state and in drafting Prenuptial Agreements. If your marriage doesn’t work out, you want to make sure your rights are protected. Money spent on a good attorney is an investment in your future.

2.  Fully disclose your assets and liabilities.

a. Gather up your most recent financial records for your stocks, bonds, annuity funds, bank statements, retirement accounts, the appraisal for your home, car, boat and any other costly assets, a couple of years of your tax returns and recent pay stubs. You will need to exchange this asset information with your soon-to-be spouse. In addition, you will have to create a list of your assets on a “Schedule” to attach to the Prenuptial Agreement.  It will be helpful to gather such information to create a current and accurate Schedule.

b. Get all of your statements of liabilities such as credit card debt, mortgage, home equity line, student loans such as for trade school, college or graduate school, personal loans owed to family or friends, auto loan and other debt.  Make a list of your liabilities for your Schedule.

3. Print out two copies of your documents of your assets and liabilities (one for your attorney and one for your soon to be spouse’s attorney) or gather documents in an electronic file for them.

4. Determine if you want the Prenuptial Agreement to apply to divorce, separate support and inheritance-related matters. You will need to figure out what is Separate Property which each of you have owned before your marriage and will remain Separate Property and which will be Marital Property. Discuss options with your attorney.

5. Depending on your financial circumstances and if you are seeking your soon to be spouse to waive assets or income in the Prenuptial Agreement, consider options such as paying some money or assets to your fiancé after periods of time that you are married, if you have considerably more assets and income than him or her. Alternatively, if your financial needs are greater than your fiancé, consider seeking some money or assets from your soon to be spouse after being married for a period of time,  if the waiver of assets or income is sought. Another option would be to have the Prenuptial Agreement end after a long term marriage, which is having a sunset clause.

6. Think about if you want to waive alimony. Sometimes, it may not be a good idea to waive alimony as you don’t know what will happen in the future.  Your needs may change, such as if you will have children and one of you will stay home with the children, if you become unemployed with no job prospects or if you become unable to work. Paying alimony could be a tax deduction in the future, so you may want to talk to your attorney and accountant about it.

7.  Remember you can’t waive paying child support for children in a Prenuptial Agreement as it is against public policy. Children need to be supported.

8.  Determine whether a family member or close friend has named you as a beneficiary to inherit money, real estate, stocks, etc. and discuss with your attorney about disclosing that in your Schedule.

9. Do not send any tax returns, retirement funds, pay stubs, bank statements or any other asset or any statements containing of your liabilities which has birth dates, social security numbers, account numbers in an unencrypted e-mail to your attorney or to your soon to be spouse. Protect your online security.  Use encrypted software to send the information or put it on a flash drive with a password.

10.  Make sure the Prenuptial Agreement is signed at least thirty (30) days before your wedding day and not the day before your wedding as you want to make sure that it will hold up in court.

To sum, make sure you get good legal advice from a competent attorney, consider what is the best process for you such as using mediation, collaborative law or traditional negotiation in creating a Prenuptial Agreement, make sure you have full disclosure of your assets and liabilities and have it signed in plenty of time which is at least 30 days before the wedding day.  Hopefully, you will never need to use the Prenuptial Agreement, but if you do, you will have it in case the marriage does break down.

An excellent resource is “Prenups and the Elephant in the Room, A Handbook for the Prenup Process”  by Deborah Hope Wayne, Esq.  which can be obtained at www.deborahwaynelaw.com or www.amazon.com.

This article is not meant to provide legal advice, but is for informational purposes only.

Copyright © Debra L. Smith 2017.  All rights reserved.

Postnuptial Agreements: Can These Potentially Save Your Marriage?

By Amanda Driscoll, Law Clerk*

Ethel Brown and Francis Brown** who reside in Massachusetts have had disagreements over finances for the last few years.  Two of the three wonderful children are finally out of college and the third just finished trade school.  They have been married for 25 years and would like to stay married.  They won’t call their marriage rocky, but they argue over money. They were considering going to a marriage counselor, but wonder if there is another way to help them stay married and decrease the conflict about financial issues.  If they have deep-rooted problems, such as financial security worries or a spouse’s expensive habits, there is another option.

Another way to identify and resolve marital concerns is by constructing a postnuptial agreement. Postnuptial agreements, sometimes referred to as “postnups,” are written and implemented after the marriage has been formed. This agreement states the obligations and responsibilities each partner in a marriage is obligated to carry out. In fact, marriage is an economic partnership, thus both partners can benefit from a contract in writing describing marital terms and conditions.

Until recently, two types of enforceable contracts had been used in Massachusetts to define property rights upon divorce. These two types were prenuptial agreements and separation agreements. Prenuptial agreements are implemented before the parties marry, whereas separation agreements are at the time the parties divorce.

In 2010, the Massachusetts Supreme Judicial Court (SJC) authorized a third option: postnuptial agreements. Postnuptial agreements are executed after the marriage agreement has been formed and before the spouses have expressed intent to divorce. Postnuptial agreements resemble separation agreements more than prenuptial agreements, since if one of the spousal partners does not agree with the terms of agreement, the parties are nevertheless bound to the agreement. In contrast, if a person is dissatisfied with the terms of a prenuptial agreement, that person can walk away and not get married. Once the two parties are married, however, rights and obligations are solidified, and the spousal partners are generally bound by the terms of their premarital agreement.

In Ansin v. Craven-Ansin, 457 Mass. 283 (2010), the Supreme Judicial Court in Massachusetts held that postnuptial agreements are not automatically unenforceable as a matter of public policy. However, not all postnuptial agreements will be enforced by the court. In order for postnuptial agreements to be enforceable, the agreement must pass a five-factor test. The most significant part is the question as to whether the agreement is fair and reasonable, and the other four factors help to provide the evidence demonstrating the fair and reasonable nature of the agreement.

What is considered “fair and reasonable” is not easily specified. This factor does not require that both spouses end up with an equal amount of marital property or money. Rather, the “fair and reasonable” factor is an assessment of all circumstances surrounding the marital agreement. The judge balances various factors against one another and evaluates which way the scale tips, either being a fair and reasonable agreement and thereby enforceable, or towards an unjust, unreasonable agreement that is unenforceable.

The judge determines whether the agreement was fair and reasonable at the time of creation by looking at the big picture. This type of evaluation can involve consideration of the spouses’ motives, such as whether they entered into the agreement to financially protect themselves, or children from a prior marriage. Another important concept to consider is whether there is any disparity in relation to property division in the agreement. The context of the postnuptial agreement is to be highly scrutinized by the judge.

Next, the judge takes another look, analyzing whether the postnuptial agreement still remains fair and reasonable at the time of divorce. This analysis assesses what circumstances have changed since the postnuptial agreement was created, considering factors such as spousal parties’ current age, health, occupation and employability and other factors and whether it would be possible that one spouse would be unable to sufficiently support himself or herself if the postnuptial agreement was not enforced. If one party would in fact be unable to properly support himself or herself at the time, then the postnuptial agreement may be considered to not be fair and reasonable at the time of the divorce.

Postnuptial agreements can be an effective tool for spouses who want to determine what will happen to their marital property if they divorce. An agreement created outside the jubilance of an upcoming marriage, or amidst the turmoil of a pending divorce would likely yield best result. Nevertheless, it is important to keep in mind that if circumstances significantly change from the time in which the agreement was created and when the divorce takes place, it can run the risk of the agreement no longer being fair and reasonable.

*A fictitious couple and family.

Resources:

Grossman, Joanna. “The Enforceability of Postnuptial Agreements: Massachusetts Weighs In, Part One in a Two-Part Series of Columns on Postnuptial Agreements.” FindLaw. (2010). Available at: http://supreme.findlaw.com/legal-commentary/joanna-grossman-archive.html.

Maier, Lynn, Esq. “Why a Post-Nuptial Agreement Can Save Your Marriage.” HuffingtonPost. (December 2011). Available at: http://www.huffingotnpost.com/lynn-j-maier-esq/why-a-postnuptial-agreeme_b_997219.html.

Walckner, Stephanie. “Fair and Reasonable in Massachusetts Postnuptial Agreements.” Marital Mediation. (April 2011). Available at: http://www.maritalmediation.com/2011/04/fair-and-reasonable-in-massachusetts-postnuptial-agreements/.

*Amanda Driscoll graduated from Suffolk University in May 2013 with a major in public administration and a minor in business law. While at Suffolk University, Ms. Driscoll was in the Griffin Honor Society,  the Secretary of the Suffolk University Environmental Club and an Eco Ambassador of Suffolk University Sustainability. She currently attends Mass. College of Law in Andover, Massachusetts, where she expects to graduate with a juris doctor degree in 2018 and Suffolk University in public administration, where she expects to obtain her masters degree in public administration in 2017.  Ms. Driscoll received a CALI Award for the highest grade achievement in the study of Writing and Legal Research in June 2016.