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Some people anticipating marriage may feel a need to protect or shelter their assets in the event of divorce or death. This can be done by the means of a prenuptial agreement (sometimes called an antenuptial agreement). This is an agreement that is signed prior to the marriage ritual. In order to be enforceable in Massachusetts, the agreement must be fair and reasonable at the time of its signing, made with a full and good faith disclosure of all assets and liabilities to the other part, and, each party had the rightor opportunity to be represented by independent legal counsel.
The new case law in Massachusetts applies a “second look” at the time the agreement was signed, to prenuptial agreements. After a determination that an agreement was valid at the time of signing, based on the above factors, the court will apply the “second look” to determine if in the intervening time since the time of signing, a change in circumstances in the marriage has rendered the agreement unfair or unconscionable.
Postnuptial agreements (contracts executed during the marriage, but not to resolve a pending divorce proceeding) require adherence to the same elements, including an exchange of the Probate Court Financial Statement (Rule 401) at a time prior to signing.
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