A prenup can protect your assets in the event of a divorce, but only if the terms are valid. Here are some common prenuptial agreement mistakes you should avoid to ensure your agreement is lawful and enforceable:
Discussing Child Support or Custody Schedules
The court may deem your prenup unenforceable if it contains illegal provisions. One such class are provisions that limit or waive child support. Massachusetts state law sets mandatory child support minimums, which are determined on the basis of legal guidelines and joint parental obligations.
You also want to avoid discussing custody schedules in your prenuptial agreement. Only a court of law may enter custody and visitation orders after a determination of the child’s interests. Not only will courts disregard terms related to child custody, but they may render the entire prenup invalid.
If you wish, you and your spouse will have the opportunity to draft a separate legal document with proposed terms for child support, custody, visitation, and parenting responsibilities when separating — just don’t include these in a prenup.
Inserting Lifestyle Clauses
One of the more common prenuptial agreement mistakes is including “lifestyle” clauses that restrict a spouse’s behavior — such as cheating or gaining weight — with financial penalties. Celebrity prenups have made lifestyle clauses very popular with couples, but Massachusetts courts are reluctant to enforce such terms and usually consider them invalid.
Failing To Make Full Financial Disclosure
A prenup must contain a schedule of property affected by the agreement, also known as full disclosure of the financial information of both spouses. This includes:
- All income, including wages, salary, commissions, bonuses, tips, business profits, rental income, dividends, royalties, trust distributions, government benefits, retirement benefits, workers’ compensation, disability income, alimony and/or child support.
- All assets, including cash, bank accounts, retirement accounts, stock, bonds, real estate, pensions, business interests, trust interests, annuities, personal property, motor vehicles, life insurance, judgments, liens, escrow funds, and pending or expected inheritances.
- All debts, including student loans, mortgages, car loans, credit card balances, notes, outstanding liens, and judgments owed.
If you or your spouse undervalue, misrepresent, or omit information about your assets and debts, the court will likely deem the whole agreement invalid or unenforceable.
Failing To Sign the Prenup Well in Advance of the Marriage
Massachusetts law doesn’t mandate when to sign your prenup, but courts are more likely to deem the agreement unenforceable if you sign it close to the wedding date. Both you and your spouse should have ample time to:
- Retain independent legal representation
- Negotiate the terms
- Draft and review the agreement to avoid ambiguous language
- Make revisions
If a court deems that either of you may have signed the prenup under duress or coercion due to an imminent wedding, it may invalidate the agreement. To protect your interests, we generally recommend signing the prenup months before the wedding.
Contact a Massachusetts Prenup Lawyer
At Koiles Pratt Family Law Group, we know how to avoid common prenuptial agreement mistakes. We serve clients in Salem, MA, and across Eastern Massachusetts. Call 978-744-7774 or contact us online for a confidential consultation with an experienced prenup lawyer.
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