When couples exchange vows, phrases like “All my worldly good, to thee I endow,” sounds romantic – but let’s face it, they don’t work for every relationship. Even couples who are deeply in love may choose to put practical protections in place through prenuptial or postnuptial agreements. These agreements provide clarity on important matters like property division and spousal support, helping couples navigate complex financial situations and avoid future conflict.

Whether before or after marriage, marital agreements aren’t about expecting the worst – they’re about protecting the future. Here’s what you need to know about prenuptial and postnuptial agreements, and how they may benefit you and your partner. Speak with a Westborough marital agreements lawyer today to learn more.

What Is a Prenuptial Agreement?

A prenuptial agreement, commonly known as a prenup (sometimes known as an “antenuptial” agreement in Massachusetts), is a binding contract created by two individuals before marriage that outlines the distribution of assets, debts, and other financial matters in the event of divorce. Effectively, this makes the prenup an advance draft of a separation agreement that can be submitted to the court to finalize divorce proceedings.

Who Should Get a Prenuptial Agreement?

When you hear the term “prenuptial agreement” or “prenup,” there are often some negative connotations. Some people mistakenly think that creating one with a future spouse signals that you expect to eventually get a divorce. Others may feel that requesting a prenup implies a lack of trust in their partner. Yet, these agreements are really about ensuring fairness and protection. There are many circumstances under which a prenup may be beneficial. These include:

• Children from a prior marriage: A prenuptial agreement can safeguard the inheritance rights of children from a prior marriage. By specifying asset distribution, you ensure their future is protected, preventing potential disputes and guaranteeing they receive their intended share.
• Family businesses: A prenuptial agreement helps protect family businesses by clearly identifying ownership and safeguarding assets. It ensures the business remains separate property, preventing potential disputes during a divorce. This preserves the company’s continuity, protects family legacies, and clarifies each spouse’s rights, providing stability for both the business and its stakeholders.
• Personal estate: A prenuptial agreement helps protect your personal estate by preserving assets and defining their distribution in the event of divorce. It ensures your hard-earned wealth remains secure, prevents unfair settlements, and gives you control over the outcome.

What Should a Prenuptial Agreement Include?

A prenuptial agreement should clearly outline the division of assets and liabilities in the event of a divorce or separation. Key elements include:

• Asset Division: Specify how marital property, such as real estate, savings, and investments, will be divided.
• Business Interests: If applicable, outline ownership and control of any businesses or family businesses to prevent future disputes.
• Debt Allocation: Address how any existing or future debts will be handled, ensuring fairness in responsibility.
• Inheritance Rights: Clarify how inheritances or gifts received during the marriage will be treated, especially if one spouse has children from a prior relationship.
• Spousal Support: Define whether spousal support, or alimony, will be provided, and if so, the amount and duration.

Every couple’s situation is unique, so working with an experienced attorney ensures your prenup is thorough and tailored to your needs. You do not want to overlook any important details when drafting these agreements.

What Is a Postnuptial Agreement?

While many people have heard of a “prenup,” they may not have heard of a postnup. Many falsely believe that, once you’re married that’s it. There is no chance to draft an agreement regarding the division of your assets. However, both parties can enter into what is called a “postnuptial agreement.” A postnuptial agreement is a legal contract created after marriage to outline the division of assets, financial responsibilities, and other important matters in case of divorce or separation. Unlike a prenuptial agreement, which is made before marriage, a postnuptial agreement is drafted once the couple is already married.

Who Should Get a Postnuptial Agreement?

A postnuptial agreement is beneficial for couples who want to clarify financial and property matters after marriage. It is ideal for those who experience significant life changes or shifts in their financial situation, such as receiving a large inheritance, starting a business, or one person assuming significant debt. Couples who may have not considered a prenuptial agreement before marriage but now wish to formalize their financial responsibilities should also consider a postnup.

What Should a Postnuptial Agreement Include?

Postnuptial agreements often include many of the things that prenuptial agreements include. You might contract around the division of property, spousal support, debt allocation, inheritance rights, and dispute resolutions.

Are Pre/Postnuptial Agreements Bulletproof?

No agreement is completely bulletproof, and prenups and postnups are no different. In fact, it is extremely common for issues to arise in the drafting process that can cause the entire agreement to be voided. Because the prenup or postnup contains terms that are meant to settle questions or other disputes that arise during divorce, the agreement has to comply with the laws at the time the divorce is initiated. This means that it cannot be palpably unfair, unconscionable, or improperly executed. Parties cannot be coerced into signing and are often strongly encouraged to speak with independent counsel before signing. And most importantly, each term in the agreement has to comply with the tests the court has for things like distribution of assets, spousal support, and dispute resolutions.

Compliance with legal tests, such as the “Fair and Equitable Distribution” rules for assets and debts, makes it absolutely critical to hire an experienced divorce and custody attorney to help you prepare a prenup or a postnup. It is not necessarily enough to hire a family law attorney that specializes in probate where their focus is drafting of wills and other estate planning documents. While both probate and family law are heard in the same court, the rules for each can be dramatically different, and applying the rules of probate to a divorce court document can have catastrophic results.

Prenups and postnups aren’t always futureproof. These agreements need to be viewed as “living” documents that need to stay up to date with each stage of your marriage. Think about all the possible changes that might occur over the course of a 15 or 20 year marriage – incomes change, property can be acquired that wasn’t expected, people even start businesses they never thought they would. If your prenup doesn’t address the big life changes, it can leave a huge gap that needs to be settled later, or those changes can upend previously agreed to terms entirely and void the agreement. You should be looking over your prenuptial or postnuptial agreement any time there’s a significant change in circumstances, if you move to a new state, or at least every five years to make sure that it’s consistent with your’s and your spouses’ wishes.

Finally, it’s important to know that there are some things that simply can’t be covered by a marital agreement. Child custody and child support are two main issues that people may want to include, but will be viewed as void if the agreement is needed down the road. Issues relating to children need to be worked out separately at the time of the divorce proceeding.

Meet with a Westborough Marital Agreements Lawyer

Marriage is an exciting milestone, and protecting your future is part of building a strong foundation together. Protect yourself and your future spouse by consulting with a Westborough marital agreements lawyer. Our team can help you draft a clear, comprehensive agreement that safeguards your rights and ensures no important details are overlooked. Whether you’re creating a new agreement or reviewing an existing one, we’re here to guide you every step of the way. Contact us today to learn more and start the process.