Pre-Marital Agreements

In Massachusetts Pre-Marital Agreements are available to parties prior to entering into marriage. Most often I see clients on their second or third marriage who are seeking protection of their assets in the event that the matrimonial bonds should be broken.

The general purpose of a Pre-Marital Agreement is to protect the two parties in the event that the marriage ends in dissolution. Customarily the parties enter into a binding agreement wherein each of the parties gives a full disclosure of all assets, income and liabilities. Each of the parties acknowledges that they have received and provided to the other party to the Agreement full financial disclosure. Failure in and of itself to make a full financial disclosure is a basis for the Pre-Marital Agreement to be unenforceable should the marriage later dissolve.

Massachusetts has a two look approach to pre-marital agreements. There is ample legal authority that requires that the Pre-Marital Agreements must be fair when entered by the parties and fair when enforced at the time of the dissolution of the marriage. The primary case and a good source of information about Pre-Marital agreements can be found in DeMatteo v. DeMatteo, 436 Mass 18 (2002).

As a general proposition the Pre-Marital Agreement is used to protect each prospective spouses assets that they own prior to the marriage and also protect each prospective spouse from pre-marital liabilities of the other prospective spouse. In general, Pre-Marital Agreements may also make provisions for marital assets and debt acquired and incurred during the marriage, again the court under the DeMatteo case will take a second look at the Agreement to insure the agreement has the same vitality at the time of the divorce that the parties intended at the time of its execution.

The Court has also said that a valid Pre-Marital Agreement is not unenforceable at the time of the divorce merely because its enforcement results in property division or in an award of support that a Judge might not order or because it is one sided, DeMatteo.

Generally Pre-Marital Agreements are a very cost effective avenue to protect your pre-marital assets in the event that the upcoming nuptials do not go as planned.

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