Prenuptial and Postnuptial Agreements
At WCN, we are large enough to have expertise in many law practices including family law, while small enough to deliver exceptional service through a personalized, concierge approach. We serve clients in Massachusetts with our primary office in Wellesley, MA and additional offices in Chelmsford and Boston.
Wilchins Cosentino & Novins’ family law attorneys represent individuals throughout the negotiation and preparation of prenuptial and postnuptial agreements. A prenuptial or postnuptial agreement is often an important component of a family’s estate planning. With our private client services practice that includes trust & estate planning, our law firm offers the convenience and benefit of having family law attorneys and trust and estate planning attorneys working collectively for our clients.
Prenuptial and postnuptial agreements are particularly important in the following situations:
- People with high net worth.
- People who are likely to receive gifts and inheritances during the marriage.
- Owners or part owners of privately held or family businesses or their children.
- People who have children or grandchildren from prior relationships whom they wish to provide for.
Difficult conflicts between a spouse and the family of the other spouse can be avoided if the parties take the time to memorialize their understandings with the assistance of a lawyer experienced in helping clients with prenuptial or postnuptial agreements.
In addition to addressing what is to happen if a marriage ends in divorce, prenuptial and postnuptial agreements commonly address what is to happen should the marriage terminate by the death of a spouse or if a spouse should become incapacitated.
Because prenuptial and postnuptial agreements can significantly alter the outcome of a divorce case, affecting important rights normally acquired by people when they get married, the courts scrutinize them carefully. It is therefore essential that the parties work with lawyers experienced and knowledgeable in prenuptial or postnuptial agreements in order to maximize the likelihood that a prenuptial or postnuptial agreement will accomplish their objectives and be enforceable in the event of a divorce.
Enforceability of Prenuptial Agreements
There is no absolute guarantee that a prenuptial agreement will be enforceable in the event of a divorce. Failure to take certain steps when negotiating and preparing a prenuptial or postnuptial agreement or events occurring during the marriage can render the agreement unenforceable. There are four steps to maximize the chances that a Massachusetts prenuptial agreement will be enforced:
- It must be clear that the parties knowingly waived the rights that they are giving up. This means the parties must be shown to have understood those rights and to have understood the magnitude of the interests being waived. To understand those rights, they each must have the benefit of legal advice (with each having his or her own attorney). As for understanding the value of what is being waived, it is essential that the parties make full and truthful disclosure of their assets and possible future gifts and inheritances. This is not the time to be modest about one’s worth.
- The parties should think ahead and ask themselves whether, ten, twenty or thirty years from now, they would be able to prove that they had made full disclosure of their assets and income and likely gifts and inheritances, that each of them had a complete understanding of the marital rights they were waiving, and that they executed the agreement freely and voluntarily and not under any pressure or duress. Financial disclosures should be made in writing and attached to the agreement. Some family law attorneys take the additional step of making a video recording of the parties as they sign the prenuptial agreement.
- The parties should ensure that, as of the time they are entering into marriage, their agreement is fair and reasonable in its proposed division of money and property and in its provisions relating to alimony.
- The parties should conduct their financial affairs during the marriage in the way they contemplated in their prenuptial agreement. A court being asked to enforce a prenuptial or postnuptial agreement must consider whether the agreement has the same vitality at the time of the divorce that the parties intended at the time of its execution and will not enforce it if it would be unconscionable to do so. The prenuptial agreement will be valid unless the circumstances occurring during the course of the marriage would leave a contesting spouse without enough property, maintenance or appropriate employment to support themselves.
For more information about why some prenuptial agreements in Massachusetts are found to be enforceable and others are not, click here. This article presents the outcome of two Massachusetts Appeals Court Decisions, Schechter v. Schechter, 88 Mass. App. Ct. 239 (2015), and Kelcourse v. Kelcourse, 87 Mass. App. Ct. 33 (2015).
At WCN, we have helped many clients develop and negotiate prenuptial and postnuptial agreements.
We are here to assist you.
Meet Our Family Law Attorneys at Wilchins Cosentino & Novins
David Burgess
Of Counsel
Michael P. Friedman
Senior Counsel
Jennifer J. Normand
Attorney
Why WCN for Family Law Matters
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