Did you pahk the cah in Havad yaaahd? You drop your “ahs,” you love yah dunks, clam chowdah, and lobstah rolls. But did you know HelloPrenup was born in Boston too? Wicked pissah, right?!
A Prenuptial Agreement is a contract between two people who plan to marry, that sets forth division of property and alimony in the event of divorce or death. In Massachusetts, a prenup becomes binding upon marriage of the parties. A Massachusetts Prenuptial Agreement may contain provisions regarding alimony to be paid or a waiver of alimony, as well as other financial arrangements for assets of either party in the event of a divorce or death. Before entering into a Prenuptial Agreement it is imperative that you understand your legal rights under Massachusetts law, and what rights you are waiving by contracting around MA divorce law with a prenup. Below, we have included several resources, including links to Massachusetts statutes, summaries of Prenuptial Agreement caselaw in Massachusetts and links to the cases, and some general guidelines. Should you need further clarification on your legal rights at any time, it is important that you contact an attorney to advise you.
For a prenup in MA to be in line with requirements for enforceability, it must be drafted with the following in mind:
Your prenup could be at risk for enforcement if you include any of the following provisions:
Information on this page provided by Massachusetts family law firm, Mavrides Law.
To get a sense of what might hold up in a court of law, I’d like to turn your attention to a real-life example of a prenup that was first thrown out and then ultimately upheld in Massachusetts courts: The Dematteo case.
Mr. and Mrs. Dematteo were married for eight years prior to their divorce and their prenuptial agreement was first deemed unenforceable by the Probate and Family Court, and then upheld by the SJC. The couple had a large wealth gap; the ex-husband was far wealthier than his ex-wife. The male partner made his need for a prenuptial agreement before marriage very clear, and the probate court did not find his request to be ‘overbearing’ but they did note that the female partner felt that the agreement was rushed.
Ultimately, although the Probate Court struck down the agreement, the SJC overturned the Probate and Family Court’s decision even though the prenup heavily favored the male spouse. They found that the prenuptial agreement was fair and reasonable to the contesting party (the ex-wife) when it was executed, becauses she had been aware of her ex-husband’s wealth, and because she waived certain rights in the prenuptial agreement. I’m pointing this out because it shows that an agreement being one-sided is not necessarily sufficient criteria for invalidating it.
The case of Dematteo vs. Dematteo is one example of what’s known as the “second look” test in Massachusetts. Even an agreement deemed valid may be rendered unenforceable if it fails the second look test. There are a few circumstances that could cause a prenup to fail this test, but the most common one is when the agreement does not have the same consequences at the time of divorce as the couple intended when it was signed. Usually this happens when circumstances have changed during the marriage such that the contesting party would not have sufficient means to support themselves independently. In other words, enforcement of a prenuptial agreement cannot leave a spouse without “sufficient property, maintenance, or appropriate employment” to support himself or herself. In the Dematteo case, the agreement passed the second look test.
Add-on Massachusetts notarization available now:Get your prenup notarized online with our exclusive partnership with Proof (formerly Notarize.com)
Now you can create your prenuptial agreement, collaborate on terms with your partner & optional attorneys, then notarize your prenup—all from your couch. The only thing we can’t do? Get married for you.
If you purchase Attorney Representation with your prenup, Notarization is included.
Prenuptial Agreements have been upheld in Massachusetts under the decisions of Rosenberg v Lipnick, Osborne v Osborne, DeMatteo v DeMatteo and Austin v Austin. In order for a Prenuptial Agreement to be upheld in Massachusetts, it is necessary that the Agreement be fair and reasonable at the time it is executed and fair and reasonable at the time enforcement is sought.
Under the case of DeMatteo, a Party is allowed to contract away substantial monetary rights. In order to be considered fair and reasonable, an agreement does not need to provide Alimony at a level proportionate with the parties lifestyle during the marriage. Rather, Alimony sufficient to cover basic necessary expenses, including food, clothing, housing and health insurance is sufficient.
Case law in Massachusetts indicates that full and fair disclosure of all assets is essential to enforcement, and each Party having the appropriate knowledge or representation through attorneys to ensure that the parties understand the ramifications of entering into the Prenuptial Agreement.
A Prenuptial Agreement can be utilized in order to keep each person’s property separate, including future appreciation and accretion, as well as future inheritance. A Massachusetts prenup can also limit, or eliminate the rights that surviving spouse’s are otherwise entitled to.
In terms of Alimony, a Massachusetts prenup can provide for how alimony payments will be structured, or waived entirely, or lump sum payments to be made upon divorce. A prenuptial agreement also allows you to establish what will be considered marital property subject to division in a divorce, what division may look like, including as a percentage at the time of divorce. However, it is important to keep in mind that a prenup in MA cannot establish custody or child support rights!
A prenuptial agreement can significantly limit the financial exposure you may have in the event that you and your spouse choose to divorce in the future.
In the case of Austin v. Austin, the MA Supreme Judicial Court reversed both the trial court and Appeals Court decisions and affirmed the ability of divorcing parties to waive alimony in a Massachusetts prenuptial agreement. In the case of Austin v. Austin, the wife waived her right to alimony in the Massachusetts Prenuptial Agreement. The Judge presiding over the divorce trial invalidated the Prenuptial Agreement with respect to alimony, reasoning that the waiver of alimony was not reasonable at the time of execution, but enforced the remainder of the Agreement with respect to property division. On appeal, the Massachusetts Appeals Court affirmed the Trial Court’s judgment, reasoning that the wife’s waiver of alimony was not fair and reasonable in light of the Parties circumstances at the time of the marriage. During the marriage, wife was a full time mother to the couple’s child. However, the Judge noted that in certain cases an alimony waiver is unenforceable. The Massachusetts Supreme Judicial Court found the Prenuptial Agreement, including the wife’s waiver of alimony to be enforceable. This follows the Court’s earlier decision in the case of DeMatteo. This decision also dismissed wife’s argument that the prenuptial agreement which included a permanent waiver of alimony somehow “…stripped her of all marital interests…”
The Court’s decision further affirmed the fact that a Prenuptial Agreement waiving a spouse’s rights to property division and alimony, will be enforced in Massachusetts absent a “…mental or physical deterioration of the contesting party…” or “…erosion of promised support by inflation…” Situations such as these would lead a court to reason that the Prenuptial Agreement is unconscionable and cannot be enforced.
Here’s how the story goes: The parties married in 1990 at the ages of 47 and 41. At the time of their marriage, the soon-to-be spouse’s financial situations were as follows:
Before their marriage, Husband and Wife discussed the need for a prenuptial agreement and obtained their own attorneys who negotiated and drafted their prenup. Fast forward 8 years- Husband files for divorce and sought enforcement of the prenup agreement, and after 3 days of a divorce trial, the court held that the agreement was unenforceable. Wait, WHAT?
Ultimately, the Supreme Judicial Court overruled the trial court’s decision, and enforced the prenuptial agreement. The court reasoned that even though the terms of the prenuptial agreement heavily favored the wealthier husband, the agreement was both “fair and reasonable” at the time of execution and at the time of enforcement. Want to read all of the juicy details? Check out the full case text.
In the Massachusetts prenuptial case of Osborne v. Osborne, the Parties executed a prenuptial agreement only a few hours before the marriage took place. The prenup detailed that neither party would be entitled to the other’s Separate Property and there would be a full waiver of alimony in the event of a divorce. At the time the prenuptial agreement was signed, the wife was represented by an attorney, but the husband was not represented by an attorney. This is a significant matter, in party because the Wife was an heiress to a significant family fortune of about $17 million. The husband on the other hand, did not have any significant assets.
The trial court upheld the prenuptial agreement, and it was appealed. On appeal, the Supreme Judicial Court of Massachusetts declared that a prenuptial agreement that contracts away the rights of the Parties under Massachusetts divorce law in the event of a divorce is valid and enforceable. The Court also reasoned that the following must be considered in determining the validity of a prenuptial agreement, in Massachusetts. In order for a prenuptial agreement to be enforced: 1) There must be full disclosure of the Parties’ assets at the time of execution, and free from duress or coercion; 2) the agreement must be fair and reasonable at the time of the execution; and 3) the agreement must be fair and reasonable at the time of enforcement.
The Massachusetts Appeals Court enforced the prenuptial agreement, and determined that the husband had not entered into the Prenuptial Agreement under duress, even though he was not represented by an attorney and it was signed only a few hours before the wedding.
