Premarital Agreements

Premarital Agreements

Premarital Agreements (previously known as ‘prenuptial’ or ‘antenuptial’ agreements) are contracts made by people before they marry. They are designed by prospective spouses to define and limit their separate ownership interests in property after marriage. Premarital Agreements do not take effect until the marriage has occurred. Thus an enforceable premarital agreement can determine the distribution of marital assets at the end of a marriage — immediately after the wedding.

Premarital agreements in Massachusetts are recognized by statute (Massachusetts General Laws Chapter 209, Section 25) and interpreted by many decisions. Spouses can always agree to incorporate the terms of their premarital agreement into their separation agreement at the  time of their divorce. Parties to divorce may also agree to incorporate some terms but not others, or to negate their premarital agreement in its entirety. Problems arise when divorcing spouses’ dispute the enforceability of their premarital agreement at the time of divorce.

Arguments about the enforceability of premarital agreements are settled in court. Massachusetts long subjected disputed premarital agreements to a dual examination. To be upheld, a contested premarital agreement had to be found to have been “fair and reasonable” both at the time it was signed and at the time enforcement is sought.

The Massachusetts Supreme Judicial Court recently redefined the “fair and reasonable” standard applied to premarital agreements at the time enforcement. In DeMatteo v. DeMatteo, 436 Mass. 18 (2002) the court established a new “conscionability” standard. Under the DeMatteo standard, if a premarital agreement was found to be “fair and reasonable” at the time of inception, it will be enforced unless it is found to be unconscionable at the time enforcement is sought.

The DeMatteo conscionability standard sharply differentiates the meaning of “fair and reasonable” at the time enforcement of a premarital agreement is requested from the meaning of “fair and reasonable” at the moment of its inception.