A prenup is not a vote of no-confidence in the marriage. In Massachusetts, it is one of the few financial conversations you can only have once, and the window closes the day you say “I do.”
A prenuptial agreement is a contract entered into before marriage that defines how property, assets, and certain financial obligations will be handled if the marriage ends, whether by divorce or by death. In Massachusetts, prenups are legally enforceable when they meet specific procedural and substantive standards. Understanding what those standards are matters more than most engaged couples realize.
What a Massachusetts prenup can cover
A properly drafted Massachusetts prenuptial agreement can address a wide range of financial issues, including:
- The treatment of assets owned before the marriage
- The division of property acquired during the marriage
- Whether and how alimony will be paid in the event of divorce
- The treatment of debts owed at the time of the marriage
- Inheritance rights and estate planning issues
- The handling of business interests during and after the marriage
Each of these can be customized to fit the specific circumstances of the couple. A prenup for a couple with comparable assets entering a first marriage looks very different from a prenup for a couple where one party is bringing significantly greater wealth or a family business.
What a Massachusetts prenup cannot cover
Massachusetts law places clear limits on what a prenup can address. A prenuptial agreement cannot determine matters relating to children, including child custody, parenting time, or child support. Those issues are decided by the court at the time of any divorce, applying the best-interests-of-the-child standard. A clause that purports to dictate them is unenforceable.
Prenups also cannot waive certain rights that public policy protects, and they cannot be used to incentivize divorce or impose unconscionable terms.
The two-stage enforceability test
Massachusetts evaluates prenuptial agreements under a two-stage test developed in Osborne v. Osborne and refined in DeMatteo v. DeMatteo. The court asks two distinct questions:
- Was the agreement fair and reasonable at the time it was signed?
- Is the agreement fair and reasonable at the time the court is asked to enforce it?
Both questions must be answered in the affirmative. An agreement that was fair when signed but has become unconscionable by the time of divorce can be set aside or modified. An agreement that was procedurally flawed at signing, even if its terms look fair years later, can also fail.
This second-look review is one of the most distinctive features of Massachusetts prenup law. It means that a prenup is not bulletproof simply because it was signed properly. The court retains authority to evaluate the agreement again at the time of enforcement.
Procedural requirements
For a prenup to be enforceable in Massachusetts, several procedural conditions must be met:
- The agreement must be in writing
- Both parties must sign voluntarily, without duress or coercion
- Each party must make a full and fair disclosure of their assets, income, and liabilities before signing
- The agreement must be entered into well in advance of the wedding, not under time pressure
The full-disclosure requirement is one of the most common reasons prenups fail. A party who did not know what they were giving up cannot be held to a contract that gives it away.
Independent counsel
Massachusetts law does not strictly require each party to have their own attorney, but it is strongly indicated. A prenup negotiated and signed without independent counsel for both sides is at far greater risk of being challenged later. The cost of two attorneys at the prenup stage is small compared to the cost of litigating an unenforceable agreement years later.
In practice, an enforceable Massachusetts prenup almost always involves independent counsel for both parties. The drafting attorney represents the party who initiated the agreement. The reviewing attorney represents the other party and confirms that the agreement is being signed knowingly and voluntarily.
When a prenup makes sense
Prenuptial agreements are especially worth considering in several common situations:
- Second or later marriages, particularly with children from a prior relationship
- Family business ownership where succession planning matters
- Significant pre-marital assets that one or both parties want to protect
- Inheritance expectations from family members
- Spouses with significantly different net worth at the time of the marriage
- Professional practices, such as medical, legal, or financial advisory firms
These are the situations where the financial consequences of a divorce, or of a death without an estate plan, are large enough that addressing them in advance makes practical sense.
Drafting practices that have led to enforceability challenges in reported cases
Drafting practices that have led to enforceability challenges in reported MA cases include:
- Inadequate financial disclosure, especially understated business or investment values
- Signing within days of the wedding, which can create a presumption of duress
- Lack of independent counsel for one or both parties
- Vague or ambiguous language that produces disputes about what was agreed
- Terms that are clearly one-sided enough to fail the second-look review
A well-drafted prenup avoids each of these pitfalls. A poorly drafted prenup provides far less protection than the parties intended.
If you are considering a prenuptial agreement and want to make sure the procedural and substantive requirements are handled correctly the first time, the time to start that conversation is well before the wedding. Schedule a free consultation to discuss what your situation needs.
The timeline question
One of the most important practical issues with a Massachusetts prenup is timing. A prenup signed the night before the wedding is at significant risk of being unenforceable, because the court will scrutinize whether the party signing it had a real opportunity to consider the terms, consult counsel, and decline if appropriate. The pressure of an imminent wedding makes that opportunity functionally unavailable.
The right time to begin a prenup conversation is several months before the wedding, well in advance of save-the-dates and final venue payments. Waiting until the engagement is announced is generally too late to do the work properly.
At Greco Law, Attorney Laura Greco drafts and reviews Massachusetts prenuptial agreements with the procedural rigor the second-look review requires.
If you are considering whether a prenuptial agreement makes sense for your situation in Massachusetts, schedule a free consultation to discuss the specifics. The earlier the conversation begins, the stronger the eventual agreement can be.
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