A prenuptial agreement is not a prediction that your marriage will fail. It is a financial planning instrument, one that gives both parties clarity, control, and protection before the stakes become complicated. Done right, it is one of the most respectful things two people can do before they marry.
What a Prenuptial Agreement Can Do
A Prenuptial Agreement Can
- Define which assets brought into the marriage remain separate property
- Protect a business or professional practice from division in divorce
- Protect an inheritance or family trust from becoming marital property
- Cap, limit, or waive alimony in the event of divorce
- Define how property acquired during the marriage will be divided
- Establish how specific debts will be allocated
- Protect children from a prior relationship by preserving designated assets for them
- Provide financial certainty for both parties entering the marriage
- Reduce the cost and conflict of a potential future divorce
A Prenuptial Agreement Cannot
- Determine child custody or child support (courts retain jurisdiction over children's welfare)
- Penalise a spouse for infidelity or other personal conduct
- Include terms that are unconscionable or that violate public policy
- Waive rights that arise from a spouse's independent conduct during the marriage
- Be enforced if obtained through fraud, duress, or coercion
- Be enforced against a spouse who had no opportunity to review it or consult counsel
- Override terms that a court finds leave one spouse with no means of support and dependent on public assistance
The Enforceability Standard in Massachusetts
Massachusetts courts will enforce a prenuptial agreement only if it meets specific requirements established by decades of case law. A prenuptial agreement is valid and enforceable when:
- It was made voluntarily. Neither party signed under duress, undue influence, or coercion. Presenting the agreement the night before the wedding and refusing to proceed unless it is signed is a classic scenario courts scrutinize for voluntariness.
- It was made with full financial disclosure. Both parties must have had access to a fair and reasonable disclosure of the other's assets, liabilities, and income at the time the agreement was signed. Concealing a significant asset undermines enforceability.
- It is not unconscionable at the time of enforcement. Massachusetts courts retain the power to set aside a prenuptial agreement, or specific provisions of it, if enforcing it at the time of divorce would leave one spouse without adequate means of support or would be fundamentally unjust given how circumstances have changed since signing.
This third element, the ability to challenge an agreement at the time of enforcement rather than only at signing, makes Massachusetts somewhat unusual. Some states evaluate a prenuptial agreement only as of when it was signed. Massachusetts also evaluates fairness at the time of enforcement, which means a term that seemed reasonable when both parties were healthy and working may face scrutiny if one spouse became seriously ill and financially dependent during the marriage.
Timing matters significantly. A prenuptial agreement signed six months before the wedding, with both parties independently represented, having had time to review and negotiate, is on much stronger legal footing than one signed two weeks before, without legal review, at one party's insistence. The circumstances surrounding signing are as important as the content of the agreement itself. If you are considering a prenuptial agreement, start the conversation early.
Independent Counsel: A Practical Necessity
Both parties should have independent legal counsel review a prenuptial agreement before signing. This is not a legal requirement, but it is effectively a practical one. Courts are far more willing to enforce an agreement where both parties had independent attorneys reviewing and advising on the terms. An agreement signed by one party without any legal advice, presented by the other party's attorney, is inherently suspect.
Having independent counsel also protects the drafting party. A court that later finds the agreement was signed without adequate legal advice on one side may invalidate the entire document, not just the unfair provisions, leaving the "winning" party with no agreement at all.
Alimony Waivers: A Special Consideration
Prenuptial agreements can waive alimony entirely, cap it at a defined amount, or limit its duration. Massachusetts courts enforce alimony waivers, but with scrutiny. An alimony waiver that would leave a spouse destitute after a long marriage will face a harder look than one where both parties entered the marriage with substantial independent resources.
The 2012 Alimony Reform Act made alimony waivers somewhat more predictable by establishing statutory durational limits that the agreement is measured against. A waiver that was reasonable in light of a short marriage is different from one that eliminates decades of alimony entitlement after a spouse sacrificed a career to raise children.
Common Situations Where Prenuptial Agreements Add Real Value
- Second marriages. A spouse entering a second marriage with assets, retirement savings, or obligations to children from a prior relationship has obvious reasons to define clearly what belongs to the marriage and what doesn't.
- Business owners. A business built before the marriage, or expected to grow substantially during it, is at risk in a divorce without a prenuptial agreement defining its treatment. Business owners who fail to address this before marriage often face devastating outcomes.
- Significant wealth disparity. When one party enters the marriage with substantially more assets, a prenuptial agreement protects against a property division that feels inequitable to either party, by defining in advance what fairness looks like to both.
- Family wealth or expected inheritance. Families with significant assets who expect to pass wealth to a child may condition gifts or bequests on the existence of a prenuptial agreement. Many families approaching a wealthy marriage from one side are not trying to be unromantic, they are trying to protect generational wealth from an uncertain future.
- Couples who simply want clarity. Some couples, particularly those who have lived through a friend's or parent's difficult divorce, simply want to know what the rules are. A prenuptial agreement is a chance to have that conversation openly, before the stress of a potential future divorce makes honest conversation much harder.
A prenuptial agreement that holds up in court is one where both parties understood exactly what they were agreeing to. The process of getting there is, in many ways, as important as the document itself.
The Conversation Is the Point
The process of negotiating a prenuptial agreement requires both parties to have honest conversations about their assets, their expectations, their financial habits, and their vision for the marriage. Many couples find that the process, whatever the final document says, is itself valuable. It surfaces assumptions and expectations that might otherwise emerge only in conflict years later.
If you are considering a prenuptial agreement, or your partner has raised the idea, contact Brigantine Law. We represent both parties in prenuptial negotiations, and we'll help you approach the process in a way that is practical, fair, and respectful of the relationship.