Protecting Your Finances After Marriage
With all the excitement involved in getting married, it is easy to understand why you and your fiancé might not have considered a premarital agreement. While no one wants to think of a marriage ending, and ending so poorly that property and finances cannot be divided in a fair and agreeable manner, it does occur. With more couples waiting until later in life to wed, there are often many valuable assets brought into a marriage, and it only makes sense to plan for the possibility of a divorce.
Preparing a well-thought-out and enforceable prenup can be a complex process, which is why you should speak to a Boston premarital agreement attorney before signing anything. At DiBella Law Offices, P.C., our lead attorney can answer all of your questions regarding premarital agreements and explain how to create a valid one. We offer every potential client a free consultation, so there is no cost to calling our Boston office (617) 870-0907 to discuss your future.
What Is a Premarital Agreement?
A premarital agreement, which is also called a prenup or antenuptial agreement, is a document that can serve as an inventory of the property that each person owned prior to the marriage. Typically, when a couple chooses to divorce, they must go through all of their property to determine how it should be divided. With a prenuptial agreement, you can both clearly state up front who owns what property, assets, and debts, making the divorce process simpler.
The document can also address how the property you are bringing into a marriage, as well as any property that is acquired during the marriage, would be divided between the spouses in the event of a divorce. In addition, the agreement can have a provision to determine if alimony will be paid and how all of the existing debt would be distributed.
In the event that there are children from a previous relationship, the care and future relationship with these children can also be outlined. When children are involved, a premarital agreement can cover whether a spouse is required to provide health insurance for the child and other spouse. In most cases, life insurance would also follow the same agreement as health insurance.
Premarital agreements will not go into effect until you file for a divorce or one spouse dies during the marriage. At this point, the agreement will outline who owns specific property and assets that you acquired during your marriage. Without an agreement, you will be required to abide by Massachusetts divorce laws, which demand an equitable distribution of your property.
This can be an extremely costly, stressful, and emotionally draining process, as you will have to thoroughly review every asset you accumulated prior to and during your marriage. However, with a thorough and detailed prenup, you and your spouse may be able to avoid this entire process and separate with a fair and reasonable division of your property.
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Are Premarital Agreements Always Valid?
It is always important to work with a knowledgeable attorney when drafting any legal document. The attorneys at DiBella Law Offices, P.C. specialize in family law will be able to guide you through the process of creating a legally binding premarital agreement should your marriage end in divorce. The following factors need to be considered to ensure that you have the best contract to meet your current and future needs:
- Exchange of financial information: This is a critical first step in creating a premarital agreement. Both parties need to be fully aware of each other’s assets, as well as any debt. This defines what exactly is being brought into the marriage by each party. Withholding any financial information during the disclosure for the prenup could result in the courts determining that the agreement is not valid in the event of a future divorce.
- Right to an attorney: Each party should obtain independent legal counsel to determine that the premarital agreement is fair to him or her. This eliminates the possibility of any conflict of interest when only one attorney represents both spouses.
- Waiting period: The agreement should be drafted and signed well in advance of the wedding. The reason for this requirement is so that one party does not “spring” the premarital agreement on the other right before the wedding. This eliminates the possibility of feeling anxiety about the agreement and/or canceling the wedding because of the agreement. In the state of Massachusetts, there is no set legal standard for how much time must pass between the signing of a premarital agreement and the wedding date. However, it is generally assumed that if the agreement is signed the night before the wedding, it is unenforceable.
- Free of duress: The premarital agreement must also be signed by each party of his or her own free will. This goes a step further than the above stipulation to eliminate any type of duress.
- Mutual understanding: When a premarital agreement is challenged in court, the judge can also look at the parties involved to determine if, at the time of the signing, both parties had a full understanding of the agreement and the potential outcome in the event of a divorce.
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How to Challenge a Premarital Agreement
Given the many rules and standards a premarital agreement must meet before it is enforceable, it is possible to challenge one in court. If you and your spouse are considering getting divorced and you believe that your prenup is unfair, too restrictive, or unenforceable, you should speak to a family law attorney at DiBella Law Offices, P.C. as soon as possible. We can review your agreement, explain your rights under Massachusetts state law, and advocate on your behalf before a judge.
Challenging a premarital agreement requires showing that the contract itself is unenforceable under the law. This can include reviewing the specific language in the agreement as well as the circumstances surrounding its signing.
Failure to disclose assets: Many couples falsely assume that a premarital agreement removes the need to review their finances. This is not true. For the agreement, both spouses must thoroughly review and outline their assets before marriage so that they can both make an informed decision about the agreement. If one member hid certain property or debt, then the entire agreement could be made invalid.
Unenforceable clauses: Premarital agreements should only encompass the financial relationship between a couple. This means that “lifestyle clauses” are unenforceable under the law and cannot be included in an agreement. But it also means that certain clauses surrounding children, such as rules about child support, custody, and visitation, cannot be included in an agreement. If your spouse tried to use the agreement to claim full custody or refuse to pay child support, a family law judge could dismiss the request immediately.
Use of force or manipulation: Both members must willingly sign the prenup for it to be valid in a Massachusetts courtroom. Using threats, manipulation, blackmail, or coercion to make one member sign the agreement is not only illegal but makes the agreement invalid. In addition, both members should have ample time to review the agreement and the opportunity to speak to a separate attorney, even if they only work with one attorney.
Unfair language: Premarital agreements may allow a couple to keep their assets from becoming marital property, but there are limitations. Massachusetts courts can ignore the agreement if they feel this document is unfair, meaning it could leave one member financially insecure after a divorce. In these instances, the court may impose financial support, like alimony or spousal support, or require a fairer equitable distribution of assets.
Not in writing: Oral agreements are not valid as premarital agreements, as are any provisions that were not initially included in the agreement.
Challenging a prenuptial can be a stressful process, as it can turn your divorce from an amicable one to a contentious one. However, you should never allow yourself to become financially insecure or destitute to avoid hurt feelings. If a premarital agreement is unfair or unreasonable, you should not hesitate to challenge it to get your fair share from your marriage.
Why You Should Speak to an Attorney About Your Agreement
No one wants to contemplate the need for life insurance, but we purchase it to protect our loved ones in the event of our death. In the case of a prenuptial agreement, you are simply preparing for the worst to protect yourself and your financial future.
Prenups can be incredibly complex documents depending on your income level, property, age, and other factors. You and your spouse may have difficulties determining what you can include in it, how it should be written, and when it is valid. If you attempt to draft one on your own and do not thoroughly review it with an experienced lawyer, you may find it unenforceable down the line.
The Boston family law attorneys at DiBella Law Offices, P.C. understand that it can be difficult to speak of or even think about a future divorce. But with our years of experience, we can assist you in planning for an event that we all hope never occurs. If you bring your case to us, we can thoroughly review your finances, assets, debt, and property to craft a thorough and valid premarital agreement that helps you prepare for the worst-case scenario.
In addition, if you are in the midst of a divorce and believe that your premarital agreement is unfair, we can represent you in court to challenge it and ensure you are treated fairly. To schedule your free consultation, call DiBella Law Offices, P.C., at (617) 870-0907.