Marriage is not only a romantic and legal commitment, but a financial one. In the instance of divorce in Massachusetts, almost all of your assets are considered ‘marital’ and are therefore subject to division, even for couples who largely maintain financial independence in marriage. Being proactive about protecting your assets can be helpful in divorce proceedings, but it’s also important to be realistic about the ways a divorce can and will affect your assets.

Defining marital assets in Massachusetts

Despite the old adage that half of all marriages end in divorce, the reality is that divorce rates have steadily decreased over the last 20 years. And Massachusetts actually has one of the lowest divorce rates in the United States. Still, divorce affects a significant number of people and mitigating stress through this emotional and difficult time should be a key consideration.

Typically, the best way to protect property or other significant assets is by having a prenuptial agreement (prenup). This not only applies to assets possessed before a marriage, but also to anticipated gifts or inherited assets over the course of the marriage. Some people opt to put property into a trust, LLC, or similar entity to further protect it. However in Massachusetts, regardless of the entity that holds title to the property, it is still considered a marital asset. Other states may recognize these vehicles as protective and therefore allow it to be excluded from divorce proceedings, but in Massachusetts, even if the title is held in a trust that’s solely in your name, it is still subject to division in a divorce.

Massachusetts is one of the most inclusive states when it comes to marital assets. This even applies to property owned prior to marriage if you don’t have a prenup. So, should you get a prenup to protect your property or significant assets? Read on.

Should you get a prenup?

What was once considered a surefire way to sour the romance of marriage, or something only necessary for the elite, prenuptial agreements have actually become more popular in recent years, particularly among younger generations. A 2022 Harris Poll, reported that 15% of Americans had signed a prenup, up from just 3% in 2010. Millennials and Gen Z make up a strong proportion (40%) of the 15%, so what are the pros and cons of a prenup?

Pros

• Because Massachusetts is so inclusive for marital assets, a prenup may be one of the only ways to actually protect your assets.
• Proponents suggest that prenups simply ensure that your own preferences are respected instead of the state’s default laws in the case of divorce or death.
• A prenup initiates the important conversation of how you’ll handle finances in marriage.
• You learn your legal rights.
• Seeking counsel can help you understand the legal implication of this union and what a divorce could mean for your finances.

Cons

• The prenuptial negotiation can be a difficult conversation and some might feel that it sets a marriage off on the wrong foot.
• Parties may not be fully aware of the fine print of what they’re signing.
• Anticipated financial circumstances may change from the time of filing the agreement to the time of filing for divorce. For example, a couple may anticipate that both partners will work full-time throughout the marriage, but once they have children, one partner transitions to being the homemaker.
• There are fees associated when drafting a prenup and working with an attorney.

Whether or not you should sign a prenup should be a decision between you and your partner. Relevant factors to consider are your lifestyles, assets, and financial goals. A prenup isn’t necessary for most marriages, and it is still true that it is more important in situations where one party is entering the marriage with substantial assets or anticipates gifts or inheritance during the marriage. Having a candid conversation with your partner and your attorney may help to clarify next steps.

What about a postnuptial agreement?

Another option to protect your assets in marriage is a postnuptial agreement. Postnups are not very common and also aren’t as reliable as prenups. A postnuptial agreement is more likely to be “reactive” due to marital problems and are generally harder to enforce and not as respected by a court of law. Postnups aren’t an ideal choice, but in specific instances can make sense for you and your partner. Consulting a family law attorney before deciding to enter into a postnuptial agreement is essential.

Seek expert legal counsel

Marriage is an exciting step in you and your partner’s life, but the weight of financial risks should not be taken lightly. Regardless of your relationship’s outlook and your assets, it is wise to discuss big picture questions about finances, family planning, and more with your partner. Consider speaking with one of Ligris + Associates’ experienced trusts & estates attorneys to outline an estate plan if you opt not to do a prenup.

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