Frank Sinatra famously crooned the lyrics, “Love is lovelier the second time around.” Maybe that’s true, but divorce the second time around without the benefit of a prenuptial agreement isn’t so lovely. Second marriages, particularly where one or both spouses have premarital assets and children from a prior marriage are well-suited for prenuptial agreements.
Massachusetts takes a two-step judicial approach when determining the validity of prenuptial agreements: A prenuptial agreement must be both fair and reasonable at the time that the agreement is entered into and at the time of divorce. Unfortunately, people somehow get the notion that prenuptial agreements are simple contracts that can be slapped together shortly before the wedding and sometime after the cake is ordered from the bakery—nothing could be further from the truth. In fact, the time for negotiation of the agreement, whether both parties were represented by competent counsel and whether each party made full and accurate financial disclosure to the other party are important considerations in determining the two-pronged Massachusetts analysis and upholding the prenuptial agreement. An agreement that was negotiated over a period of several weeks involving two lawyers of comparable experience and skill is much more likely to be upheld than one that was produced a few days, or hours, before the wedding.
It is important to hire a lawyer well-versed and experienced in family law well in advance of a planned wedding to begin the process of negotiating a prenuptial contract. A good lawyer will collect information about the income, assets and liabilities of his or her client and disclose, disclose, disclose these to the other party, who—it is best—has also hired a lawyer well-versed and experienced in family law and who, in turn, discloses, discloses, discloses. That way, the field of negotiation is level and the chances that the agreement will later be determined to have been fair and reasonable at the time that it was entered into increase.
In my opinion, it is virtually impossible to ‘over disclose’ financial information when negotiating a prenuptial agreement. Anyone who tries to hide or protect any portion of their own assets in the event of a divorce is on a fool’s errand because that lack of disclosure will be a major consideration for the court. So, don’t do it and don’t tolerate a lawyer who thinks that may be a good idea. It isn’t.
Whether the prenuptial agreement is fair and reasonable at the time of divorce is a question dependent upon factors often not known or knowable to anyone when the prenuptial agreement is entered into, such as the future health of the parties. Also, if the parties have children from the second marriage, that will be taken into consideration by the court in the event of divorce, along with the length of the marriage and all the other Massachusetts Chapter 208, Section 34 factors. For example, if the parties have a child, or children, from the marriage and the prenuptial agreement would leave one of the parties in such a poor economic situation that the ability of that party to care for the child, or children, would be impaired the division according to the terms of the prenuptial agreement may well be determined to be inequitable and the agreement may be set aside by the court.
In short, there are many complexities and nuances to the law concerning prenuptial agreements in Massachusetts. So, it is important to consult with a family law attorney early and to proceed properly in drafting, negotiating and entering into a prenuptial agreement.
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