What Is a Massachusetts Prenuptial Agreement?
Under Massachusetts law, a prenup is called an antenuptial settlement, as per MA Gen L ch 209 § 25. It allows spouses to decide upon key financial issues like division of assets, responsibility for debts, and spousal support if the marriage ends.
When couples divorce in Massachusetts, the law follows equitable distribution and not community property. Equitable distribution means a judge decides what is a fair allocation of assets. It is not the same as dividing assets equally. Instead, equitable distribution looks at many factors, such as each spouse’s economic circumstances, contributions made during the marriage, and whether certain assets make more sense to stay with one spouse versus the other.
A prenuptial agreement in Massachusetts lets you and your future spouse decide before the marriage what’s fair instead of having a judge decide for you in the event of divorce.
Already married? You may want to consider a postnuptial agreement to protect your assets.
How to Write a Prenuptial Agreement in Massachusetts
To write a prenuptial agreement in Massachusetts, enter each detail in the Legal Templates document builder that applies to you:
- Spouses’ names and backgrounds (such as previous marriage)
- Details of any children the spouses have together
- Property details (owned prior to marriage or acquired during)
- Business details (owned prior to marriage or acquired during)
- Debt details (held prior to marriage or incurred during)
- Marital home and household expenses
- Spousal support
- Additional clauses
- Dispute resolution
Sample Massachusetts Prenuptial Agreement
Below, you can view a sample Massachusetts prenuptial agreement. Use our document editor to customize this template to meet your needs and then download it in PDF or Word format.
Legal Requirements in Massachusetts
Massachusetts prenuptial agreements are governed by state-specific contract law and case law. The UPAA does not apply in this state. Keep this in mind when you create the agreement.
Signing
Each spouse is a party to the prenuptial agreement, so each has to sign the document. You should also have the signed document authorized by a notary to help establish it as a valid agreement.
Enforceability
Courts in Massachusetts generally favor the enforcement of prenups. Massachusetts uses a “second-look” test to decide whether to enforce a prenuptial agreement, as per DeMatteo v. DeMatteo, 436 MA 18. This means there must be fairness at execution (when it was first drafted and signed) and fairness at enforcement (if spouses divorce and rely on the agreement).
To be fair at execution, both spouses must have signed the agreement voluntarily and understood what they were signing. There must have been full disclosure of assets, and the agreement must be fair and reasonable. To be fair at enforcement, a court must decide that the terms are still fair and reasonable given any changes in circumstances during the marriage. The effect of the contract cannot leave the other spouse unable to care for themselves.
Financial Disclosure
Both parties must provide full and complete financial disclosure when they sign the prenuptial agreement and may not engage in fraud.. If either spouse fails to make a full and complete disclosure of their assets at the time of the agreement, the prenuptial agreement might not be enforceable.
Attorney Representation
Each spouse should have their own attorney review the prenup before signing. This ensures that the agreement complies with Massachusetts law and that it’s in the best interest of each spouse.
Spousal Support Waivers
One spouse can waive spousal support in a Massachusetts prenuptial agreement. But like all other clauses in the prenup, a judge will decide in the event of a divorce whether this waiver is still fair and reasonable given any changes in circumstances. A prenup that makes the other spouse destitute may be rejected.
Modifications and Sunset Clauses
In Massachusetts, spouses can change or update their prenuptial agreement during the marriage. Any changes require both spouses’ consent and should be independently reviewed by an attorney, just like when the original agreement was made. You can also put a “sunset” clause in your prenup so it’s no longer valid after a certain date.
Marital vs. Separate Property
When spouses divorce, courts usually distinguish between marital property (acquired during the marriage) and separate property (acquired by one spouse before the marriage). In Massachusetts, a judge can assign one spouse’s separate property to the other as part of equitable division, as per MA Gen L ch 208 § 34. You may want to protect separate property in your prenup.
Other Considerations
The prenuptial agreement must be fair. The agreement and a schedule of any affected property must also be recorded with the county registry of deeds where the husband lives within 90 days of the wedding or in the county where the wife lives if the husband does not live in Massachusetts, as per MA Gen L ch 209 § 26.
