What Everyone Gets Wrong About Prenups

Prenups are sticky business. The mere mention of one can lead to some very difficult conversations, especially if only one person really wants it. The stigma of prenups can cause people to leave them to the last minute, resulting in rushed — and potentially invalid! — agreements.

Here's what most people don't realize, though...

If you're get married in Massachusetts, you're getting a prenup whether you want one or not.

That's because the moment you get married, the terms of your divorce are determined by Massachusetts laws — specifically, Massachusetts General Laws, Chapter 208. That's true whether you're married for 20 minutes or 20 years. If you get divorced in Massachusetts without a valid prenup and can't settle your divorce without litigation, Chapter 208 is the law a judge will use to decide the terms of your divorce judgment.

Think of it as a "default" prenuptial agreement, written for you by the Massachusetts legislature.

Chapter 208 has 55 separate sections — that's a really long prenup! Here's just a bird's-eye-view of some of the sections that are included in the "default prenup":

  • Section 17 allows the judge to award temporary support while the divorce action is pending, including alimony, health insurance, and legal fees.
     
  • Section 19 allows the judge to enter temporary orders regarding the care and custody of the children while the divorce action is pending.
     
  • Sections 28 and 31 allow 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 everything in either spouse's name as the judge deems appropriate.
     
  • Section 38 allows the judge to apportion responsibility for legal fees between the spouses.
     
  • Sections 48 through 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.

If you're getting married and don't think you have a prenup, think again — there's one out there already, and you probably haven't ever read it!

If you're not comfortable with the default prenup, you can get your own.

Instead of accepting the default laws, you can take many of these decisions out of a judge's hands. You can't make permanent decisions about child support and custody (because circumstances can change and the court puts the children's interests first), but you can preemptively settle many of the sticky issues, like alimony and asset division. By doing so, you can avoid a lot of unnecessary conflict — not to mention the tremendous expense of divorce litigation!

Remember, the default divorce laws leave a LOT to "judicial discretion." It's the judge's job to review all the facts and decide on a "fair and reasonable" result. In many cases, the judge's decision ends up being unsatisfying to one or both parties — and appeals are very difficult. It's not unheard of for divorcing spouses to spend hundreds of thousands of dollars in legal fees, only to find themselves with a judgment neither of them really likes.

A prenuptial agreement assures that your own discretion will govern the terms of your divorce, if the worst should happen.

In a nutshell, a prenuptial agreement is a way for you to take control of the laws that would apply if your marriage were to end. A prenup can help you 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.