Prenuptial agreements can seem like a real buzzkill for the blushing bride-to-be or grinning groom-to-be, but they can be a very important aspect of preparing for marriage.

A prenuptial agreement (“prenup” for short) is a contract created by two people before they get married that typically lists all of the property each person owns, as well as any debts, and specifies what each person’s property rights will be after the marriage. It can be difficult to approach the topic of a prenup with your partner, because they are often seen as a means for the wealthier partner to gain a waiver of legal and financial benefits from the less wealthy partner in the event of divorce, and are even thought by some to encourage divorce. However, if you approach a prenup gracefully, it can actually strengthen the marital relationship because the more you discuss on the outset of your married life the better it will be in the long run.

So how do you know if a prenup is right for you and your future spouse?

Here are some things to consider:

Who needs a prenup?

While prenups have the reputation of being for the wealthy who want to protect their assets from “gold-diggers”, they can actually be beneficial to people in all walks of life.  Prenups can be particularly beneficial to people who:

  • Have children from previous relationships
  • Want to clarify their rights and responsibilities, financially, during the marriage
  • Want to avoid any arguments in the case of a divorce, usually over issues like how to divide property or whether either spouse might receive alimony
  • Seek protection from each other’s debts

What’s the benefit?

Some of the issues that a prenup can address are as follows:

  • Division of property (acquired before or during the marriage)
  • Alimony stipulations
  • Inheritance or financial support stipulations (regarding children from prior relationships)
  • Division of debt
  • Insurance provisions (Will one spouse continue to provide if the marriage were to conclude?)

What happens if you decide not to create one?

If you don’t create a prenup, then it falls to state law to dictate who owns property acquired during the marriage, as well as what happens to that property in the event of divorce or death.  In Massachusetts, the state stipulations regarding property distribution for couples without a prenup are:

Massachusetts is an equitable distribution state. In determining how property will be divided, the court shall consider the following factors:

  • The length of the marriage.
  • The conduct of the parties during the marriage.
  • The age, health, station, and occupation of the spouses.
  • The amount and sources of income, vocational skills, employability of each spouse
  • The estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.
  • The contribution of each of the parties as a homemaker to the family unit.
  • The contribution of each of the parties in the acquisition, preservation and appreciation in value of their respective estates.

In determining the property distribution, the court shall also consider the present and future needs of the dependent children of the marriage. After a divorce, a husband or wife shall not be entitled to courtesy or dower in the land of the other spouse.

As far as alimony and spousal support goes, Massachusetts law stipulates:

The court may order either party to pay alimony. In determining the amount of alimony to be paid, the court shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit. [Based on the General Laws of Massachusetts Chapter 208-34]

An important note from The Civil Divorce:

In Massachusetts, all assets are marital assets. It doesn’t matter how or when they were acquired or whose name they’re in. Retirement benefits, business interests, the antique chair from Aunt Agnes—they’re all marital assets.

This doesn’t always mean that assets and debts are divided equally. Sometimes there’s a valid reason for one person to get a larger share. One example is a short-term marriage. If one side brought in significant assets, he or she may get a credit for them.

Given that all assets are considered to be marital assets, it will come down to a judge to determine who gets what both when it comes to property and debts if you don’t have a prenup.

The most important thing about deciding whether or not a prenuptial agreement makes sense for you and your significant other is to start the conversation early.  Having an open and caring discussion about difficult topics such as a potential divorce or death of a spouse down the road is important to help contribute to a successful marriage.

If you are considering a prenup, or want to know more about the benefits and limitations of prenups in Massachusetts, feel free to contact us to learn more about your rights.  The attorneys at Revelli and Luzzo would be happy to speak with you, since we specialize in family law.