Before getting married, many Massachusetts couples use prenuptial and postnuptial agreements to specify the terms of a possible divorce. A prenuptial agreement is often used to address common issues that arise in divorce, including property division of marital assets and spousal support. While a prenup cannot be used to address all issues, it can shorten the length of the divorce process.
What are the requirements of a prenup?
For a court to find that the prenup is valid, it will have to meet some basic requirements. In Massachusetts, a prenup must:
- Be in writing
- Include legal terms
- Be signed voluntarily by both partners
- Include notarized signatures
- Include full and fair financial disclosures
How will courts determine whether a prenup is unenforceable?
Even a valid prenup may be deemed unenforceable by the court. Under Dematteo v. Dematteo, a Massachusetts appellate court case, courts will determine whether a prenup is enforceable in two steps:
- First, the court will determine if the prenup is valid. If the prenup meets the criteria listed above, it will likely be considered valid.
- If the prenup is determined to be valid, the court will take a second look at the agreement. Generally, if the court finds that one of the spouses will be unable to remain comfortable once the marriage has ended, the prenup may be unenforceable. The circumstances of the marriage may change over time and one of the spouses may be left “without sufficient property, maintenance, or appropriate employment to support himself or herself.” In such cases, the prenup may be unenforceable.
At the time the parties signed the prenup, the agreement may have made sense. However, at the time of the divorce, the prenup may be deemed “unconscionable.” For example, one spouse may have developed a serious physical or mental health issue during the marriage that prevents them from working.
If you are thinking about signing a prenuptial or postnuptial agreement, you should make sure it meets all state requirements and is fair to both parties, so that the court is more likely to deem it enforceable if you divorce.