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Prenuptial Agreements

Massachusetts Prenup Lawyer

Trusted Legal Advocates Resolving Your Prenuptial Agreement Concerns

Prenuptial agreements, also known as premarital agreements, antenuptial agreements, or simply prenups, can be the single most important document to have should you and your spouse choose to divorce. They are used to resolve some of the most pressing issues in a legal separation, skipping the need for costly and stressful litigation.

However, because they have to be drafted and signed before you and your spouse tie the knot, making a prenup is rarely even considered since divorce seems out of the question at that point in time. The Hingham prenuptial agreement attorneys of Lynch & Owens are proud to help countless couples draft prenuptial agreements in Massachusetts to protect both individuals’ interests, approaching this delicate subject with sensitivity and tact.

What Is a Prenuptial Agreement?

A prenuptial agreement is a legally binding contract for engaged spouses to sign before they officially marry. The terms of this premarital contract establish various understandings of common marital issues in the event of a divorce. These terms typically include:

Are Prenuptial Agreements Enforceable in Massachusetts?

prenuptial agreement lawyer

Any prenuptial agreements duly signed and executed before marriage will routinely be enforced in Massachusetts, making them excellent tools to simplify a potential divorce. However, not all prenups will be rubber-stamped and Massachusetts courts routinely decline to enforce prenuptial agreements which are poorly drafted or fail to comply with the law regarding prenups.

Massachusetts courts employ a “two-look” test when determining the enforceability of prenuptial agreements. In order to pass muster, the prenup must be “fair and reasonable” when executed and remain “fair and reasonable” at the time of divorce. Two major factors in the “first look” (i.e. whether the agreement was fair and reasonable when signed) are whether the spouses made full and accurate disclosures of their respective assets when the prenup was executed and whether one spouse was pressured into signing the agreement.

During the “second look” (i.e. whether the agreement was fair and reasonable at the time of divorce), courts will examine whether enforcement of the agreement would leave one spouse impoverished and unable to support him or herself, while the other retains all or nearly all of the assets and income. In determining whether an agreement is fair and reasonable at the time of the divorce, courts will often place greater focus on whether a party was deprived of a share of assets earned by one spouse during the marriage, where Massachusetts prenuptial law generally offers stronger protections for excluding premarital assets from the division of assets. Courts may also scrutinize alimony waivers if enforcement of the agreement would leave a spouse without the means to support him or herself after the divorce.

For help drafting a prenuptial agreement in Hingham call our Massachusetts prenup lawyers today at (781) 253-2049.

What Are the Benefits of a Prenuptial Agreement?

There are many reasons to have a prenuptial agreement before tying the knot with someone you love. A nearly universal benefit of having a prenup is it endows far greater certainty over what happens in a divorce, allowing both spouses to rely on the prenuptial agreement if the relationship falters. In addition, litigating a divorce is costly. Having a premarital agreement in place can resolve many of the issues that may arise, reducing the time and expenses associated with divorce.

From Jason's interview for the Masters of Family Law series on

What Can Be Protected with a Prenuptial Agreement?

The specific financial protections offered by prenuptial agreements can vary from state to state. Across the US, more than 25 states have adopted versions of the Uniform Premarital Agreement Act (UPAA), which includes uniform provisions specifying the protections offered by premarital agreements, as well as rules affecting how such agreements may be entered and enforced. Massachusetts has not adopted the UPAA, which means the rules surrounding premarital agreements in the Commonwealth are based on the common law—i.e. appellate court decisions that serve as binding precedent for lower court judges.

Massachusetts case law on prenuptial agreements is often complicated and subject to change as appellate courts announce new decisions. However, our decisional law has carved out several areas where prenuptial agreements offer strong protections in Massachusetts:

Protecting Premarital Assets

In general, Massachusetts appellate courts have found prenuptial agreements are highly effective for the protection of “premarital assets” in a subsequent divorce. In plain English, this means a well-drafted agreement can ensure the assets that each spouse owned prior to the marriage will continue to stay the property of the spouse who brought the asset into the marriage upon divorce. A key factor for protecting premarital assets involves full and complete disclosure of all assets at the time the agreement is entered. One reminder for parties is to identify items of sentimental value as separate premarital property in the prenup, even if such property only has limited monetary value.

Avoiding Premarital Debts

Where the cost of student loans seems to be an ever-worsening problem across the country, prenuptial agreements are one way for parties to avoid being saddled with the other spouse’s debts in the event of a divorce. In general, Massachusetts decisional law appears to lend strong support for excluding premarital assets and debts from an assignment in a divorce through the use of prenuptial agreements.

Alimony Waivers

Another area of strong protection includes waivers of alimony. If both spouses agree in a prenup that neither spouse will seek or receive alimony, a judge is likely to honor the agreement and will not order alimony in the event of a divorce. A crucial factor in the enforceability of alimony waivers is whether depriving one spouse of alimony at the time of the divorce will leave that spouse impoverished and totally unable to support him or herself, especially following a medium to long-term marriage. Nationwide, there is some disagreement among states about whether alimony waivers should be enforceable in prenuptial agreements, although the recent national trend seems to be moving towards making such waivers enforceable.

Family Gifts and Inherited Assets Received During the Marriage

Although few appellate court decisions have dealt directly with the issue, Massachusetts courts have generally voiced support for the notion that a spouse can use a prenuptial agreement to ensure gifts received from that spouse’s family and/or an inheritance received by that spouse during the marriage will remain that spouse’s separate property in the event of a divorce. Because Massachusetts decisional law provides the strongest protections for premarital assets, protections for family gifts and inherited assets a spouse receives during the marriage are generally viewed as somewhat less secure or reliable than those associated with premarital assets.

What is Generally Not Protected in a Massachusetts Prenup?

Child Support

There appears to be broad agreement among the states, as well as Massachusetts decisional law, that a prenuptial agreement cannot be used to waive or eliminate child support or have a determinative impact on child custody. In particular, Massachusetts case law is quite clear that parents cannot waive future child support as part of a divorce agreement, and it appears unlikely a court would enforce a prenuptial agreement provision to reduce child support. A court may be more inclined to enforce, or at least consider, a prenuptial provision which contemplates one spouse “overpaying” child support, along with cost-sharing provisions, such as agreements to share equally in a child’s extracurricular activities or college expenses, so long as such provisions do not restrict or deprive a child of financial support.

Strict Determinations of Child Custody

With respect to child custody, it is unlikely a Massachusetts Probate & Family Court judge would find a prenuptial agreement that specifically provides for specific child custody or a particular parenting arrangement determinative in a future divorce, where child custody decisions are based on the best interests of the child. However, a judge could potentially consider certain custody-related provisions of a prenup as one factor in the total circumstances surrounding the child custody question. For example, if spouses agree in their prenup they intend for one spouse to serve as a “stay-at-home parent” or primary caregiver for the children, and the judge is given evidence that the spouses followed this plan during the marriage, they may consider the provision when determining custody. In addition, if the parties’ child was already born at the time the prenuptial agreement was executed (i.e. if the spouses had a baby prior to getting married), a judge could give somewhat more weight to a prenuptial agreement provision stating the parties’ custody intentions in the event of a divorce.

Undisclosed Premarital Assets

As noted above, Massachusetts courts employ a “two look” test for prenuptial agreements, in which the court must determine the agreement was fair and reasonable at the time it was made and remains fair and reasonable at the time of the divorce. A major factor in the “first look” turns on whether a spouse made full and accurate disclosure of his or her premarital assets. A failure to disclose the existence or value of a premarital asset is one of the most common reasons these agreements are rejected.

What Protections are Ambiguous Under Massachusetts Prenuptial Law?

To a greater degree than in states which have adopted the Uniform Premarital Agreement Act, the judge-made law affecting prenuptial agreements in Massachusetts can be volatile and ambiguous. Areas of ambiguity include:

Assets Acquired by Each Spouse During the Marriage

Although Massachusetts prenups offer strong protections for premarital assets, as well as protections for family gifts and inheritances received during the marriage, the law is less clear about the enforceability of prenup provisions that seek to exclude more conventional assets obtained by either party from division in the event of a divorce. For example, it is not uncommon for prenuptial agreements to include provisions that each party will retain the retirement assets earned by a party during the marriage as that party’s separate property in a divorce. Although our appellate decisions do not necessarily prohibit such provisions, the reliability of such provisions is generally viewed with some skepticism. Where Massachusetts courts will only enforce a fair and reasonable prenuptial agreement at the time of a divorce, prenups seeking to exclude marital assets—such as retirement accounts acquired during the marriage—from division in a divorce are generally more likely to be considered unfair at the time of the divorce.

Marital Debts Acquired During the Marriage

As noted above, student loans are an increasing concern for many spouses. Massachusetts courts have long held one spouse’s debts can be assigned to the other in a divorce, although courts are sometimes more reluctant to assign one spouse’s debts compared to dividing marital assets earned by one spouse. There is reason to believe Massachusetts courts would enforce a prenup provision that assigns an individual debt, such as a student loan, to the spouse who incurred the debt in the event of a divorce. However, generally worded provisions that seek to assign marital debts can prove more problematic. For example, if one spouse incurred a greater share of debt in his or her name due to the other spouse’s poor credit score during the marriage, a court could decide a prenup provision that assigns all marital debt to the spouse who incurred the debt was not fair or reasonable at the time of the divorce. In some instances, it may make sense for the prenup to specifically identify which kind of debt should be assigned to the parties. For example, the agreement could provide any student loans incurred by a spouse will be assigned to that spouse in the event of a divorce, but a mortgage debt incurred by one party in connection with the marital home would be considered joint debt.

General Custody Provisions (Shared Physical Custody)

A frequently asked question is whether judges will consider a prenuptial agreement provision which states the parties intend to share physical custody of the children in the event of a divorce. As stated above, a judge is unlikely to consider any prenup provision seeking to specifically determine custody as controlling in the event of a divorce. However, a judge can probably consider a simple statement of intent by the parties within their prenup—such as a mutual desire for shared physical custody in the event of a divorce—when determining custody. Although an appellate court could reverse a Probate & Family Court judge’s custody decision if the judge appeared to rely too heavily on a prenuptial provision affecting custody, it appears possible a Probate & Family Court judge could consider such a provision a factor in a custody decision.

Marital Conduct/Behavior

One potentially problematic area of prenuptial law involves provisions that attempt to dictate spousal behavior during the marriage. For example, we have seen prenuptial agreements include “promises,” such as sharing chores and parenting duties, as well as various behavior provisions requiring each party to refrain from infidelity and treat the other spouse with respect. Although many of the principles embodied by such promises include positive behaviors, serious questions can arise about whether such provisions undermine the overall integrity of the agreement. For example, if one spouse fails to remain faithful during the marriage, could this invalidate some or all of the financial protections the spouse received under the agreement? If non-compliance with behavioral clauses can be cited as grounds for invalidating some or all of the other provisions within the agreement, it can significantly undermine the overall integrity of the agreement.

Seeking an Experienced Hingham Prenuptial Agreement Lawyer You Can Trust? Contact Us

At Lynch & Owens, P.C., we can help you and your fiancée draft and sign the kind of prenuptial agreement that will simplify your life as you move into your future as a married couple. We understand you may not wish to interrupt one of the most blissful and romantic times of your life with complex legal matters, which is why our talented legal team will resolve your concerns as seamlessly as possible.

Contact our Massachusetts prenuptial agreement lawyers or call us at (781) 253-2049for the legal help you need.

Commonly Asked Questions

Can prenuptial agreements be changed after marriage?

Yes, prenuptial agreements can be modified or revoked after marriage, but it requires the agreement of both spouses in writing.

What happens if a prenuptial agreement is not signed before marriage?

If a prenuptial agreement is not signed before marriage, it is no longer considered a prenuptial agreement and must be executed as a postnuptial agreement.

Can prenuptial agreements be challenged in court?

Yes, prenuptial agreements can be challenged in court if they were signed under duress, if one spouse did not fully disclose their assets or if the agreement is grossly unfair.

Do both spouses need to hire separate attorneys to draft a prenuptial agreement?

While it is not required by law, it is highly recommended that both spouses have separate attorneys to ensure that the agreement is fair and reasonable for both parties.

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