Be a Legal Rebel: Get a Prenuptial Agreement

Note: a more recent version of this post is available here.

For many people, getting a prenuptial agreement demands a certain amount of cynical realism that makes them uncomfortable. "Why would I want to plan for the worst," they ask, "when this is supposed to be forever?"

But here's the thing: if you get married, you will have a "prenuptial agreement" of sorts, even if you don't sign one.

Specifically, your prenuptial agreement will either be one that you helped prepare, or it will be the one written by the legislature. Here in Massachusetts, the laws that apply to divorce are found in Massachusetts General Laws, Chapter 208. If you get divorced in Massachusetts without a prenuptial or postnuptial agreement, and you are unable to reach a separation agreement without litigation, these are the laws that a judge will apply to your divorce. In a manner of speaking, they are the default prenuptial agreement handed down by the Massachusetts legislature.

A prenuptial agreement makes you a "legal rebel" by rejecting the default laws.

My friend Ruth Carter likes to stir things up. An ABA Legal Rebel 2012, she offers legal commentary and advice about flash mobs, no pants rides (NSFW), and other edgy topics. More importantly for this article, she encourages people to define their own legal rights whenever possible, such as when she modified the form contract for a half marathon.

Prenuptial and postnuptial agreements are a way for you to be a legal rebel, too – to define your own legal rights in the event of divorce, rather than simply accepting the default laws.

A prenuptial agreement avoids conflict in advance.

It does not take a law degree to realize that Massachusetts' divorce laws assume that a large number of divorces will be litigated. Not all sections make that assumption – Section 1 of Chapter 208 describes the various permitted causes of divorce (including "irretrievable breakdown of the marriage"), and Section 1A describes the process for filing jointly for divorce; this is the section that applies if you are able to prepare a separation agreement with your spouse without litigation. However, much of the remainder of Chapter 208 describes how the court will handle a litigated divorce. For example:

  • Section 1B describes how to unilaterally bring an action for divorce.
  • Section 17 allows the judge to award temporary support while the divorce action is pending, including alimony, health insurance, and legal fees (a.k.a. "fees pendente lite").
  • Section 19 allows the judge to enter temporary orders "relative to the care and custody" of the couple's children while the divorce action is pending.
  • Section 28 and Section 31 allows the judge to enter a final judgment regarding the care and custody of the children, including child support, legal decisionmaking authority (a.k.a. "legal custody"), and the children's residence and parenting schedule (a.k.a. "physical custody).
  • Section 34 allows the judge to award alimony and divide the spouses' respective estates as the judge deems appropriate.
  • Section 38 allows the judge to apportion responsibility for legal fees between the spouses.
  • Sections 48495051525354, and 55 are the meat of the Alimony Reform Act that went into effect on March 1, 2012. They create presumptions regarding the availability, duration, conditions for termination, and amounts of alimony.

Rather than subject yourself to these laws, you can predetermine the disposition of many of these issues. For issues that do not lend themselves well to prior disposition – such as child-related issues – your prenuptial agreement can include a dispute resolution clause that encourages out-of-court resolution of any differences you and your spouse might have. Thus, even if your prenuptial agreement does not address 100% of the issues, you can plan to avoid unnecessary conflict, not to mention the tremendous expense associated with litigation.

A prenuptial agreement puts your own discretion ahead of the judge's.

The default divorce laws outlined above have one important theme that runs throughout them: judicial discretion. In a litigated divorce, the judge has a lot of discretion to divide assets, liabilities, and incomes as he or she sees fit. This discretion can lead to some very unsatisfying outcomes for divorce litigants, with little basis for appeal. It is not unheard of for a high-conflict spouse to reject a settlement offer and spend hundreds of thousands of dollars on legal fees, only to receive much less from the judge than what the offer included.

By preparing a prenuptial agreement, you help ensure that your own discretion will govern the terms of your divorce, if the worst should happen.

A prenuptial agreement protects against changes in the laws.

As noted above, the laws governing alimony in Massachusetts changed dramatically on March 1, 2012.  The reforms created a bright line in how divorces were decided: before March 1, 2012, divorces were subject to one set of alimony laws, and after March 1, 2012, divorces were subject to the reformed laws. For those in the latter category, it did not matter that couples entered into marriages while the old laws were still in effect; their divorces were still subject to the new laws. Some of them probably found themselves wishing they had a prenuptial agreement. Indeed, that is one of the benefits of a prenuptial agreement: it fixes the law in time and protects the spouses against unforeseen changes in the laws.

A prenuptial agreement puts you in control.

In a nutshell, a prenuptial agreement is a way for you to assume control of the laws that would apply if your marriage were to break down. It is a way for you to be a "legal rebel" by rejecting the default laws. With a prenuptial agreement, you can avoid litigation, put your own discretion ahead of the judge's, and protect against unforeseen changes in the laws.

Many marrying couples are reassured and empowered by the knowledge that they can determine their own legal rights and obligations – even if they are rights and obligations they hope to never need to exercise.

(As a brief aside, in closing, I will note again that many of the same arguments apply to postnuptial agreements.)