Prenuptial Agreements

A prenuptial agreement (sometimes referred to as an antenuptial agreement) is an agreement entered into by two people who are about to be married and who want to make a determination as to what should happen to his or her respective property in the event of death or divorce. The idea behind this agreement is to avoid having the issues of division of assets and alimony decided by a judge if there is a divorce.

In a divorce proceeding, where the parties have executed a prenuptial agreement, the court will first look to determine whether the agreement was “fair and reasonable” at the time of its execution. If the court determines that it was fair and reasonable at the time of execution, it will take a second look at the time of divorce and determine whether the agreement is conscionable.

In Massachusetts, a prenuptial agreement will be enforced “unless, due to circumstances occurring during the course of the marriage, enforcement … would leave the contesting spouse ‘without sufficient property, maintenance, or appropriate employment to support’ herself.” (DeMatteo v. DeMatteo, 436, Mass. 18, 26 (2002)). It is also important to note that a prenuptial agreement need not provide the contesting spouse with the same property division and support as that spouse would receive in a divorce if no such agreement existed.

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