When You Should Get a Prenup
Many people balk at the idea of a prenuptial agreement, finding the idea “unromantic.” They may discuss other topics unrelated to romance, such as whether or not to purchase a new refrigerator for the house they plan on living in, or whether one of them will fix dinner or will they go out to eat. But, they still hesitate to talk about finances and other assets and how they will divide them in the unfortunate situation of a divorce.
Prenuptial agreements, or “prenups” as they are commonly called, actually reduce stress since they provide the parties an opportunity to fully disclose, prior to the marriage, their assets and liabilities, and provide realistic expectations for each one of them if the marriage does not last.
When to Get a Prenup
Prenuptial agreements benefit almost every engaged couple. Some specific circumstances that make a prenup particularly attractive include:
- When at least one of the parties to the marriage has children from a previous relationship or marriage.
If there is no prenup, and the parties divorce, there may be a lengthy battle of dividing assets. Money and property one party may have planned to leave to children as an inheritance may be diminished or dissolved in a contentious divorce.
If one of the parties dies without a will, Massachusetts law dictates that the surviving spouse receives one-third of the deceased spouse’s assets. If there is a will that leaves the entire estate of the deceased to his or her children, it does not matter. If there is no prenup, the surviving spouse will still receive one-third of the estate of the deceased.
If there is a prenup that states that the surviving spouse will receive nothing from the decedent’s estate, that is controlling. The children of the deceased will inherit the entire estate if that was the intent of the deceased. At least the surviving spouse will not receive a one-third share.
- When one party has significantly greater assets than the other.
There are times, particularly in mature couples for whom there have been previous marriages, when one party has significantly more assets than the other. Although the wealthier party may want to provide for the less wealthy party, if there is no prenup stating how the assets will be divided, the Massachusetts court will divide them in an “equitable” manner. What is equitable depends on the discretion of the court and will require a hearing where evidence is presented by both sides. The process is often expensive and protracted, eating away at the assets in question.
A prenup avoids this problem and determines ahead of time exactly how the assets will be distributed. It decreases uncertainty for the less wealthy party, because she or he will know exactly what is in store for them if they decide to divorce.
Timeline for Preparing a Valid Prenup
The closer in time to the wedding or actual marriage that the prenup is signed, the easier it will be for one party to have it invalidated by claiming they were under duress and did not have time to fully explore the ramifications of the prenup. Although Massachusetts law does not specify how long in advance the prenup must be signed in order for it to be valid, the further ahead of the nuptials it is signed, the more likely the court will honor it. We typically advise our clients to have a prenup completed at least three to six months before the actual marriage date.
Asking your intended to sign an agreement the night before a big wedding, where guests are planning on attending, flowers are ready to be put in place, caterers on the way with the food, the more likely it is to be invalidated. The intended spouse may feel he or she had no choice but to sign the agreement, and will argue to the court that he or she did not sign it freely and voluntarily.
Circumstances That May Invalidate a Prenup
In order to be valid, both parties must have freely and accurately exchanged their financial information. If a wealthier spouse fails to disclose an asset, the agreement will likely be invalidated. Courts also will take a “Second Look” at the agreement at the time of the divorce to be sure its provisions are not unconscionable. They will also evaluate the current situation of the parties to determine if circumstances have changed to such a degree that enforcement of the agreement would be unconscionable.
At Infinity Law Group, we have the experience you need to prepare a prenuptial agreement for you. We know what needs to be included in order to make the agreement valid. We also know how to present a case for invalidation of a prenup if that is what you need. We have three convenient Massachusetts office locations for your convenience. Contact us to arrange for a free phone consultation.