When a couple is engaged and planning their wedding it is a happy time in each of their lives, perhaps the happiest time. It’s not at this time that a couple would even want to consider divorce. However, with the national divorce rate being somewhere around 50%, it is something an engaged couple should consider and prepare for, in the event that the marriage does not last.
The best way to prepare for the divorce is to plan ahead. That is through a prenuptial agreement (also known as a premarital or antenuptial agreement). Prenuptial agreements are nothing new. In the Jewish faith, marital contracts date back over 2,000 years. The modern idea of a prenuptial agreement even dates back to 16th century England.
In modern day prenuptial agreements, a couple can plan for any possible separation or divorce. In the agreement they can address property division, alimony, or protect one or just a few specific assets. M.G.L. c. 209 §25 specifically allows for Massachusetts couples to enter into prenuptial agreements. Prenuptial agreements can provide for many types of situations, including:
1. where there is a significant pre-marriage disparity of assets or income between the parties;
2. where one party has a particular asset that he or she wishes to segregate and protect (such as a family business);
3. where one party has the possibility of accumulating significant assets, either by gift, inheritance, or individual endeavor (generally speaking, one person accumulates the asset without any contribution or assistance from the other); or
4. for individuals entering into second marriages where each party has his or her own previously accumulated assets or there is a desire to keep an estate intact to pass on to children by a prior marriage.
The Massachusetts Supreme Judicial Court case DeMatteo v. DeMatteo outlines what is required for a Massachusetts prenuptial agreement to be legal. First, the agreement must be fair and reasonable at the time of execution. Secondly, the agreement must be fair and reasonable at the time of entry of the judgment of divorce nisi.
Massachusetts law also requires that a couple to a prenuptial agreement make a full and truthful disclosure of their respective assets and liabilities. This ensures that there are no secrets or surprises at the time the couple is married, and later if and when they divorce.
Prenuptial agreement may not seem too romantic, and a couple, frankly, does not want to consider the possibility that the marriage could fail. However, a prenuptial agreement is quite practical, and protects both individuals before, during, and after the marriage.