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Monday, September 27, 2010

Prenups and Postnups

With the rise in divorce rates over the past fifty years, many couples are approaching marriage with a lot more caution than past generations. Some couples are choosing to enter into agreements that, in the case that their marriage did end in divorce, would specify how to divide the assets between the spouses. These agreements are commonly called "prenuptial agreements," or "prenups," but are also known as antenuptial agreements. In Massachusetts, prenuptial agreements are valid so long as:

  • there is a full and fair disclosure of each individual's assets (you have to tell your soon-to-be spouse about everything that you have and vice-versa);
  • the agreement is considered fair and reasonable both at the time that the agreement is entered into and at the time of the divorce (you can't take everything and leave your spouse financially dependent on the state); and
  • there is no fraud or duress (you can't present a prenuptial agreement to your fiancĂ©e right before the wedding and say, "Sign this or we're not getting married.").

Additionally, courts look favorably on prenuptial agreements where both individuals are represented by their own attorneys.

Recently, the Supreme Judicial Court of Massachusetts recognized the validity of "postnuptial" or "marital agreements" as well. These "postnups" are very similar to "prenups," but are entered into after the individuals have been married. Reasons for entering into a "postnup" vary, but may make sense if one or both parties operate their own businesses and do not want to worry about the other spouse claiming an interest in the business if the parties were to get divorced.

Should you have any questions about "prenups" or "postnups," contact Attorney Justin L. Kelsey, or call 508.655.5980 to schedule an initial consultation.

Sources: M.G.L. c. 209 §25; §26; Ansin v. Craven-Ansin, 457 Mass. 283 (2010); and Osborne v. Osborne, 384 Mass. 591 (1981).

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