Prenuptial – or antenuptial – agreements are becoming more and more popular. While some may balk at the idea of contemplating divorce at the same time that a wedding is being planned, prenuptial agreements can be very helpful instruments in the event that the marriage ends through death or divorce. Prenuptial agreements are legal in Massachusetts and can address several different items.
Will premarital assets be considered separate property? How about gifted and inherited assets? How about assets acquired during the marriage? What about appreciation in value from any of these categories of assets? Or income derived them? Will there be any consideration in exchange for one party waiving their right to the other’s separate property? A good prenuptial agreement will designate what will constitute marital property and what will constitute separate property.
Prenuptial agreements can also establish whether there will be an alimony waiver. If there is not, they can also provide for certain types of limitations in alimony payments, whether that be in amount or duration. There are many moving pieces with respect to alimony and a prenuptial agreement can address any or all of them, or not at all.
They can also provide, in certain circumstances, for what happens to separate property in the event of the death of one of the parties. Will the separate property be set aside in the event of death, or will it be subject to the Commonwealth’s death or intestacy statute? Is there consideration if there is?
One thing prenuptial agreements do not – and cannot – provide for is items relating to the children – child support, parenting schedules, etc. The court has to consider the best interests of the children with respect to these issues, and in the event of a divorce, a court will not follow the edicts of a prenuptial agreement signed before the parties were married.
While conversations surrounding prenuptial agreements can be awkward, they are best though of as a “seatbelt.” You don’t want the car to crash, but if it does, at least there are some protections in place to make the aftermath easier to manage. Skilled counsel can be very helpful in determining the terms and conditions of a prenuptial agreement, and in making sure it is properly done.