By: Samantha Medeiros 

A prenuptial agreement, also referred to as a prenup, is a written contract spouses enter into before getting legally married. Movies and TV shows have led the average person to believe that prenups only exist to protect the “richer” spouse from losing their money and assets after a divorce. The truth is, although prenups do involve clarifying financial matters, they are provide trust and transparency between both married spouses.  

The thought of having conversation about a prenup with your soon to be spouse may feel unromantic, but it is an important step toward protecting your finances later in life.  What future spouses need to discuss is what, if anything, you would like to provide for each other in your estate plan if your marriage ends by a party’s death and how your assets should be split if your marriage ends in divorce. In addition to that, you and your spouse need to discuss the amount of alimony you are each entitled to, if any, if your marriage ends in divorce. Be prepared to also disclose your current assets and liabilities to ensure that you each have a full understanding of one another’s finances.  

To ensure your prenup will be enforceable, a few things need to occur. The prenup must be enforceable at the time of execution. The factors a judge may consider to determine if a prenup is enforceable at the time of execution are: (1) If both parties were informed of the other’s assets and liabilities; (2) If both parties was represented by independent counsel; (3) If both parties had an adequate amount of time to review the agreement; (4) If both parties understood the terms and their effects; (5) If both parties would understand their rights if no agreement were in place; and (6) If the agreement is both fair and reasonable.  

Specifically, Massachusetts courts employ a “two-look” test when determining the enforceability of prenuptial agreements. To pass this test, the prenup must be “fair and reasonable” when executed and remain “fair and reasonable” at the time of divorce.  

The “first look” test, which considers whether the agreement was fair and reasonable when signed, depends on two major facts: (1) whether the spouses made full and accurate disclosures of their respective assets when the prenup was executed; and (2) whether one spouse was pressured into signing the agreement. 

The “second look” test, which considers whether the agreement was fair and reasonable at the time of divorce, is when courts examine whether enforcement of the agreement would leave one spouse impoverished and unable to support themself, while the other retains all or nearly all of the assets and income.  

Courts will often place greater focus on whether a party was deprived of a share of assets earned by one spouse during the marriage when determining whether an agreement is fair and reasonable at the time of the divorce. 

One last thing to be aware of is that a prenup cannot make determinations such as a parenting plan or child support. All issues relative to children and the support they should receive are made at the time of divorce. 

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