Massachusetts Prenuptial Agreement Lawyer
Virtually everyone entering into matrimony does so with the assumption that the marriage will last forever. However, statistics reflect at least a 50 percent failure rate for first marriages and an alarmingly higher rate for subsequent marriages when money and children from prior relationships are at issue. As a result, more and more couples, whether entering into a marriage or deciding to live together without being married, are signing prenuptial or pre-cohabitation agreements that create a property settlement without the need for litigation.
I am Judith A. Wayne, a Boston divorce lawyer with offices in Swampscott and Malden. I help clients negotiate prenuptial agreements throughout the Boston North Shore and metro areas in Massachusetts.
Who needs prenuptial agreements?
Traditionally, young couples with few assets who anticipate building a financial future together often did not want or felt they did not need a prenuptial agreement. However, nowadays many couples entering into first marriages with no preacquired assets are opting for prenuptial agreements to remove the possibility of a costly and acrimonious divorce.
Prenuptial agreements can also be used in anticipation of cohabitation. For unmarried, cohabitating couples, prenuptial agreements can offer them a great deal of stability and protection. These agreements are especially useful for cohabitating couples or domestic partners since they are not given the traditional protections and benefits that married couples receive. By establishing the property and rights of each party beforehand, couples can prevent lawsuits and constructive trusts in the event that they end their relationship.
First marriages where one spouse has a disproportionate share of assets demonstrate the necessity of a prenuptial agreement. Most lawyers also recommend them for subsequent marriages where one or both parties enter the relationship with significant assets acquired from past relationships or from the fruits of their own labors. A prenuptial agreement allows you to protect assets you want to pass on to your children.
Despite grim divorce statistics, many people remain in unhappy marriages for fear of losing the assets they have acquired during the marriage or out of concern that divorce would cause them to lose the lifestyle to which they have become accustomed. Fear of losing one’s assets applies to both men and women, since most households are comprised of two incomes, and sometimes a woman earns more than her husband does. Prenuptial agreements would eliminate that need to remain in an unhappy circumstance just to preserve the financial status quo.
Opponents might argue that prenuptial agreements cause divorce by making it easier to dissolve a marriage. However, this contract in and of itself does not cause the problems that result in divorce; it merely makes the divorce process less combative should those problems arise.
Those with significant assets prior to entering a marriage would be wise to consider the protection afforded by a prenuptial agreement. Even those with few or no assets are deciding to eliminate the possibility of a contentious termination of their relationship by clearly defining the division of their future acquired assets prior to entering the marriage.
In support of the concept of a prenuptial agreement, I am reminded of the adage: While love is grand, divorce is 100 grand.
Are prenuptial agreements enforceable?
Massachusetts case law favors the effectiveness of a properly drafted prenuptial agreement, provided both parties are represented by lawyers and have made complete financial disclosures to each other at the time of the execution of the agreement.
In the recent past, prenuptial agreements were routinely overturned by Massachusetts probate court judges when the aggrieved spouse claimed to have signed the agreement under duress. This is no longer the case, as courts tend to dismiss the “duress” defense as irrelevant. However, prenuptial agreements can be overturned if they fail to take into account future children born of the marriage.
Constructive trusts and prenuptial agreements
If you are living together with another person but are not married, a prenuptial-type agreement can protect your financial interests if the relationship ends. Otherwise, the person you live with could sue you to establish a constructive trust. For more information, see Constructive Trusts and Prenuptial Agreements.
Attorney consultation
For more information about prenups, contact me, attorney Judith A. Wayne, at the Swampscott or Malden location of the Law Offices of Judith A. Wayne and Associates. Je parle Francais. Se habla español.
