Marriage is usually contemplated and entered into because the parties are in love and plan to spend their lives together. The reality, however, is that almost half of all first marriages and significantly more second and subsequent marriages end in divorce. In addition, the age at which people are choosing to get married has been steadily increasing in recent decades, meaning one (or both) party may bring significant assets into the marriage. With all of that in mind, it should come as no surprise that both prenuptial and postnuptial agreements are also becoming increasingly popular. If you are planning to marry or are already married, understanding the difference between a prenuptial and a postnuptial agreement is important.
First and foremost, a prenuptial agreement is a legal contract made between two people in contemplation of marriage. The terms of a prenuptial agreement may apply in the event of divorce or the death of one party to the agreement. In Massachusetts, a prenuptial agreement may include, but is not limited to, the following:
Each state decides if and/or how prenuptial agreements are enforced. Massachusetts will enforce a prenuptial agreement if certain conditions are met, including:
A postnuptial agreement is similar in nature to a prenuptial agreement; however, it is important to understand that a postnuptial agreement is not an agreement made for the purposes of “divorce planning or in the anticipation of divorce.” Like a prenuptial agreement, for example, a postnuptial agreement can set forth how assets are to be divided in the event of a divorce, but it cannot be made in anticipation of divorce.
Not all states recognize and enforce postnuptial agreements. The Commonwealth of Massachusetts addressed the issue in Ansin v. Ansin, 457 Mass. 283, 2010, holding that a married couple does not lose the right to enter into a contract with one another merely because they are married. There are, however, several important factors that must be “carefully scrutinized” before a postnuptial agreement will be enforced, including: