For a prenup in MA to be in line with requirements for enforceability, it must be drafted with the following in mind:

• Put it in writing, people! Yes, your prenup has to be a written contract – so no, you can’t just think it into existence. Make it formal.
• Terms included must be lawful
• Signed by both parties (HelloPrenup recommends an initial at the bottom of each page!)
• Signed voluntarily (without duress, intimidation, deceit, etc.)
• Signatures must be notarized
• Full and fair financial disclosure – that’s right, this means disclosing *all* of your finances. See our prenup encyclopedia for a more precise, detailed definition.
• Representation by an attorney adds an extra layer of protection

Your prenup could be at risk for enforcement if you include any of the following provisions:

• Child custody or child support
• Incentive to commit illegal acts
• Incentive for divorce
• Unfair, unjust, or deceptive terms

Like most states, Massachusetts allows both “fault” and “no-fault” grounds for divorce. In a no-fault divorce, you can simply claim “irreconcilable differences” as to your reason for why the marriage broke down. Unlike a fault divorce, claiming “irreconcilable differences” does not require any explanation or proof as to why your marriage has broken down.

Alternatively, Massachusetts allows for the following fault grounds:

• adultery
• impotency
• desertion for one year before the divorce
• non-support
• drug or alcohol abuse
• cruelty or abusive treatment, and
• a prison sentence of five or more years.

Fault-based divorces are often more complex, time consuming, and expensive, because you have to prove that your spouse engaged in one of the above offenses, and that was the reason for the breakdown of your marriage.

>>For the entire fine print, review Massachusetts Divorce Law

Property that is considered part of the marital estate

In Massachusetts, marital property can include property acquired during the marriage, but can also include property acquired prior to the marriage, depending on the circumstances. Massachusetts is an equitable division state. Please note, “equitable” division is not synonymous with “equal” division. So, in determining how a court will divide property during a divorce, judges are permitted to consider 18 factors, including, but not limited to, the length of the marriage, the health of the parties, the earning potential of the parties, among other factors. This is important to note, as the longer the marriage, the more likely property that may otherwise be considered “separate” may be brought into the marital estate subject to division. That is, unless you have a prenuptial agreement, of course!

>>For the entire fine print, review Massachusetts List of Factors Considered in a Divorce

In MA, property that is not part of the marital estate subject to division upon divorce is called “Separate Property.” As described above, Massachusetts operates like many other equitable distribution states, where a list of factors (see above) allow a court to determine what property should be considered marital and subject to division, and what property is considered separate, depending on a variety of factors dictated by the state’s rules. Rule of thumb? If you want to ensure that your separate property, including any appreciation or income derived therefrom remains separate, a prenuptial agreement is key.

Financial support upon divorce

In Massachusetts, spousal support is called “alimony.” When a couple divorces and one spouse is financially dependent on the other spouse, the court may order the higher earning spouse to provide the financially dependent spouse with money for a certain period of time, dependent on the length of their marriage. In determining alimony, the court may consider several factors to help determine the amount and duration of alimony payments, including:

• The age and health of the parties
• The length of the marriage
• Income and employability of each spouse
• Marital lifestyle and the ability to maintain that lifestyle
• Contributions of each spouse to the marriage
• Loss of economic opportunity due to the marriage
• Other factors deemed relevant

>>For the entire fine print, review Massachusetts alimony laws, Massachusetts General Laws, Part II, Title III, Chapter 208

In the case of Austin v. Austin, the MA Supreme Judicial Court reversed both the trial court and Appeals Court decisions and affirmed the ability of divorcing parties to waive alimony in a Massachusetts prenuptial agreement. In the case of Austin v. Austin, the wife waived her right to alimony in the Massachusetts Prenuptial Agreement. The Judge presiding over the divorce trial invalidated the Prenuptial Agreement with respect to alimony, reasoning that the waiver of alimony was not reasonable at the time of execution, but enforced the remainder of the Agreement with respect to property division. On appeal, the Massachusetts Appeals Court affirmed the Trial Court’s judgment, reasoning that the wife’s waiver of alimony was not fair and reasonable in light of the Parties circumstances at the time of the marriage. During the marriage, wife was a full time mother to the couple’s child. However, the Judge noted that in certain cases an alimony waiver is unenforceable. The Massachusetts Supreme Judicial Court found the Prenuptial Agreement, including the wife’s waiver of alimony to be enforceable. This follows the Court’s earlier decision in the case of DeMatteo. This decision also dismissed wife’s argument that the prenuptial agreement which included a permanent waiver of alimony somehow “…stripped her of all marital interests…”

The Court’s decision further affirmed the fact that a Prenuptial Agreement waiving a spouse’s rights to property division and alimony, will be enforced in Massachusetts absent a “…mental or physical deterioration of the contesting party…” or “…erosion of promised support by inflation…” Situations such as these would lead a court to reason that the Prenuptial Agreement is unconscionable and cannot be enforced.

Here’s how the story goes: The parties married in 1990 at the ages of 47 and 41. At the time of their marriage, the soon-to-be spouse’s financial situations were as follows:

• Husband had substantially more assets than wife, owning a substantial stake in a family business, along with numerous assets. His estimated net worth was over $80 million.
• Wife owned no real property, had few assets, and made $25,000 per year as a secretary. She shared a two-bedroom apartment with her daughter from her first marriage.

Before their marriage, Husband and Wife discussed the need for a prenuptial agreement and obtained their own attorneys who negotiated and drafted their prenup. Fast forward 8 years- Husband files for divorce and sought enforcement of the prenup agreement, and after 3 days of a divorce trial, the court held that the agreement was unenforceable. Wait, WHAT?

Relax. The Prenuptial Agreement was enforced.

Ultimately, the Supreme Judicial Court overruled the trial court’s decision, and enforced the prenuptial agreement. The court reasoned that even though the terms of the prenuptial agreement heavily favored the wealthier husband, the agreement was both “fair and reasonable” at the time of execution and at the time of enforcement. Want to read all of the juicy details? Check out the full case text.

In the Massachusetts prenuptial case of Osborne v. Osborne,the Parties executed a prenuptial agreement only a few hours before the marriage took place. The prenup detailed that neither party would be entitled to the other’s Separate Property and there would be a full waiver of alimony in the event of a divorce. At the time the prenuptial agreement was signed, the wife was represented by an attorney, but the husband was not represented by an attorney. This is a significant matter, in party because the Wife was an heiress to a significant family fortune of about $17 million. The husband on the other hand, did not have any significant assets.

The trial court upheld the prenuptial agreement, and it was appealed. On appeal, the Supreme Judicial Court of Massachusetts declared that a prenuptial agreement that contracts away the rights of the Parties under Massachusetts divorce law in the event of a divorce is valid and enforceable. The Court also reasoned that the following must be considered in determining the validity of a prenuptial agreement, in Massachusetts. In order for a prenuptial agreement to be enforced: 1) There must be full disclosure of the Parties’ assets at the time of execution, and free from duress or coercion; 2) the agreement must be fair and reasonable at the time of the execution; and 3) the agreement must be fair and reasonable at the time of enforcement.

The Massachusetts Appeals Court enforced the prenuptial agreement, and determined that the husband had not entered into the Prenuptial Agreement under duress, even though he was not represented by an attorney and it was signed only a few hours before the wedding.