Skip to main content

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).

Comments

Popular posts from this blog

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days.

This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened.

In addition to offering a grace period to change your mind, the Nisi period has three other legal effects:

1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, because…

Does a Criminal Record affect Child Custody?

If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected.

In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent.

Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent'…

The Questions that Lawyers and Mediators aren't asking but should: Let's talk about Pronouns

I recently had the opportunity to train with two of the most prominent mediators in Massachusetts: John Fiske and Diane Neumann. Each time they run a training, John and Diane share what they think is the most important question for a client to answer to have an effective mediation. John says that he thought the most important question is "What do I want?" But then he will tell you, with a knowing smile, that Diane disagreed with him and she would say that the most important question for a client to answer is "Who am I?"

I agree with Diane. The best lawyers and mediators ask their clients not just about what they want, but also deep questions about the clients' identity, goals, and values in order to help the clients resolve conflict in the most effective way possible. Despite knowing this, we often fail to ask clients the simplest questions when we first meet them or have them fill out an intake. We fail to give them an opportunity to answer the question “Who …