USA – MASSACHUSETTS Trends and Developments Contributed by: Caterina S Wurman and Madeline R Pelagalli, Fitch Law Partners LLP
Parties cannot, however, use prenuptial agreements to make any determinations with respect to child cus ‑ tody or child support upon divorce. These issues must be addressed between the parties at the time of the parties’ divorce and according to the current appli ‑ cable laws. This does not mean that parties cannot negotiate and reach a settlement at the time of divorce as to issues involving child custody and child support, but the parties cannot predetermine with a premari ‑ tal contract anything with respect to the rights of the minor children of the marriage. Rather, any negotiated terms at the time of divorce are subject to a court’s assessment of the children’s best interests. While it is the hope going into the marriage that one never has to test the enforceability of a prenuptial agreement, given what is at stake, it is critical to enlist the assistance of skilled counsel for each party in the negotiation and drafting of a prenuptial agree ‑ ment to ensure it will be upheld by a Massachusetts court. Further, although prenuptial agreements are not adversarial per se, there is often a negotiation com ‑ ponent involved in the drafting of an agreement, so it is best to start the process well in advance of the parties’ wedding date to avoid heightened stress and tension between the parties or their families leading up to the big day, and also to bolster enforceability of the prenuptial agreement itself. In Massachusetts, for a court to enforce a prenuptial agreement, “the agreement must be valid at the time of execution and must also be fair and reasonable at the time of divorce” ( Austin v Austin , 445 Mass 601, 604 (2005), citing DeMatteo v DeMatteo , 436 Mass 18, 26 (2002)). In other words, the court evaluates the prenuptial agreement at two points in time: when it was executed by the parties and when a party is seek ‑ ing enforcement. In determining whether the prenuptial agreement was valid when executed, the court examines if “(1) [the agreement] contains a fair and reasonable provision as measured at the time of its execution for the party contesting the agreement; (2) the contesting party was fully informed of the other party’s worth prior to the agreement’s execution, or had, or should have had, independent knowledge of the other party’s worth; and (3) a waiver by the contesting party is set forth”
( Austin , 445 Mass at 604, quoting DeMatteo , 436 Mass at 26). The key consideration as to whether the agreement is fair and reasonable when executed is whether “the contesting party is essentially stripped of substantially all marital interests” (id at 604–05, quot ‑ ing DeMatteo , 436 Mass at 31). If a court determines the premarital agreement was valid when executed, the court then moves on to ana ‑ lyse the enforceability of the premarital agreement upon divorce. The standard is effectively whether the premarital agreement’s enforcement upon divorce is unconscionable – that is, whether one party is left “without sufficient property, maintenance, or appro ‑ priate employment to support [oneself]” ( Austin , 445 Mass at 607, quoting DeMatteo , 436 Mass at 37). In a recent case, Rudnick v Rudnick , 102 Mass App Ct 467 (2023), the Massachusetts Appeals Court affirmed a court’s determination that a prenuptial agreement at the time of divorce was unconscionable because enforcement would have left the wife without assets, alimony, or any marital interests. Massachusetts also recognises postnuptial agree ‑ ments. While certain components of the analysis are similar, the standard for enforceability is higher as compared to prenuptial agreements. An impor ‑ tant characteristic of prenuptial agreements versus postnuptial agreements is that “[b]efore marriage, the parties have greater freedom to reject an unsatisfac ‑ tory premarital contract”, so – given that is not the case where the parties are already married – “careful scrutiny” of postnuptial agreements is needed ( Ansin v Ansin , 457 Mass 283, 289, 291 (2010)). To deter ‑ mine whether a postnuptial agreement is enforceable, which must be established by the non-contesting par ‑ ty, the court examines if: “(1) each party has had an opportunity to obtain separate legal counsel of each party’s own choosing; (2) there was fraud or coercion in obtaining the agreement; (3) all assets were fully disclosed by both parties before the agreement was executed; (4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equi ‑ table division of assets and all marital rights in the event of a divorce; and (5) the terms of the agreement are fair and reasonable at the time of execution and at the time of divorce” (Id at 291 (footnotes omitted)).
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