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At the time of divorce, issues of division of assets and spousal support must be resolved either by agreement of the parties or by the court. By having a pre-nuptial agreement, these issues can be anticipated and resolved before marriage. A pre-nuptial agreement allows the couple to fix their respective future obligations to each other in the event of a divorce.
A pre-nuptial agreement is valid only if signed prior to the marriage ceremony. The agreement must be fair and reasonable under the circumstances at the time of its signing and must be found fair and conscionable when reviewed by a court upon divorce. The agreement must disclose all assets and liabilities of each party. In Massachusetts, an attorney may represent only one of the intended spouses in the negotiation and drafting of a pre-nuptial agreement; however, both parties should be represented by attorneys.
A post-nuptial agreement is different from a pre-nuptial agreement in that a post-nuptial agreement is entered into by the parties during the marriage. A post-nuptial agreement also sets forth the parties’ rights and obligations in the event of divorce. In 2010, the courts in Massachusetts clearly set forth factors of analysis in determining the enforceability of post-nuptial agreements, which are slightly different than the analysis of pre-nuptial agreements. A post-nuptial agreement must be fair and reasonable both at the time of execution and at the time of divorce. Both parties should have separate legal counsel for the negotiation and drafting of a post-nuptial agreement.
If you are considering entering into or have been presented with a pre-nuptial agreement or post-nuptial agreement, please contact Kerstein, Coren & Lichtenstein.