1 PRENUPTIAL AGREEMENTS 101 Christopher H. Suh, Esq. The Wagner Law Group One Financial Center, Suite 3610 Boston, MA 02111 (617) 271-5282 csuh@wagnerlawgroup.com https://linktr.ee/suhchris The Wagner Law Group 2 Prior to Starting • Fee Agreement and Retainer • Relative assets of each party • Financial Disclosure • Date of Wedding The Wagner Law Group 3 One needs to be aware of or determine: • What would happen without a prenuptial agreement • The minimum that the law requires with a prenuptial agreement • What you would like • What your spouse would like • What you can agree upon 4 Divorce without a Prenuptial Agreement The Wagner Law Group 5 M.G.L. c. 208, § 34 • M.G.L. c. 208, § 34 provides thirteen mandatory factors and two discretionary factors that a Court may consider when making an equitable division of the marital estate (property division and alimony). • Courts have extraordinarily broad discretion to frame orders under M.G.L. c. 208, § 34. The Wagner Law Group 6 Thirteen of these factors are mandatory 1. length of the marriage; 2. conduct of the parties during the marriage; 3. age of the parties; 4. health of the parties; 5. station of the parties; 6. occupation of the parties; 7. the amount and sources of income of the parties; 8. the vocational skills of the parties; 9. the employability of the parties; 10.the respective estates of the parties; 11.the parties’ liabilities and needs; 12.the opportunity of each party to acquire future capital assets and income; and 13.amount and duration of alimony. The Wagner Law Group 7 Two of these factors are discretionary 14. each party’s contribution to the acquisition, preservation and/or appreciation in the value of their respective estates; and 15. each party’s contribution as a homemaker to the family unit. The Wagner Law Group 8 Length of Marriage Short term (0-5 years): Each Party generally put back into his or her financial situation from prior to the marriage Mid-term (5-15 years) Long term (15+ years): Generally 50/50 In a long term marriage, the less wealthy spouse must be maintained in a lifestyle commensurate with the parties’ standard of living during the marriage. Property Division v. Alimony The Wagner Law Group 9 Types of Alimony Temporary alimony: Support ordered when the parties are separated prior to divorce. Also called alimony pendente lite , which is Latin, meaning, "pending the suit". Rehabilitative alimony: Support given to a lesser-earning spouse for a period of time necessary to acquire work outside the home and become self-sufficient. General alimony: General support paid to the lesser-earning spouse. Reimbursement alimony: Support given as a reimbursement for expenses incurred by a spouse during the marriage (such as educational expenses). The Wagner Law Group 10 General Alimony Term Limits (M.G.L. c. 208, §§ 49 – 55) Long term marriages (more than 20 years): Alimony will end at retirement age as defined by the Social Security Act. 5 years or less : Maximum term of alimony is 50% of the number of months of marriage. 10 years or less but greater than 5 years: Maximum term is 60% of the number of months of marriage. 15 years or less but greater than 10 years: Maximum term is 70% of the number of months of marriage. 20 years or less but greater than 15 years : Maximum term is 80% of the number of months of marriage. The Wagner Law Group 11 Other Alimony Considerations Most importantly, the length of the marriage is defined as the date of the marriage through the date of service of the complaint for divorce/summons. Alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payer shows that the recipient has maintained a common household with another person for a continuous period of at least three months. The Wagner Law Group 12 Child Support A prenuptial agreement cannot limit or permanently establish rights and obligations (custodial and financial) regarding a party’s responsibility to/for children of the marriage. 13 Rights upon Death without a Prenuptial Agreement The Wagner Law Group 14 Elective Share (M.G.L. c. 191, § 15) If there are living descendants, 1/3 of property (first $25,000 outright and the remainder in a life estate) If no living descendants, $25,000 outright plus ½ of remaining property in a life estate The Wagner Law Group 15 Intestacy (M.G.L. c. 190B, § 2-102) Surviving spouse receives: the entire intestate estate if: • no descendant or parent of the decedent survives the decedent; or • all of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent the first $200,000, plus ¾ of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent the first $100,000 plus ½ of any balance of the intestate estate, if there are any descendants of the decedent or the surviving spouse that are not in common with each other The Wagner Law Group 16 Other Benefits Exempt Property and Discretionary Family Allowance Right to serve as Administrator Curtesy and Dower Homestead Wrongful Death Qualified Joint and Survivor Annuity to Retirement Funds 17 Five Requirements for a Valid Prenuptial Agreement The Wagner Law Group 18 First Requirement A full and voluntary disclosure must occur Case law indicates the necessity of full and frank disclosure of all assets. The Wagner Law Group 19 Second Requirement Each party needs to be represented by separate counsel Each party needs to have appropriate knowledge or representation through counsel to ensure that the parties enter into the Agreement understanding its ramifications and its terms. The Wagner Law Group 20 Third Requirement There must be an absence of fraud, coercion, duress and undue influence A person who enters into a contract under the influence of such fear as precludes him or her from exercising free will and judgment may avoid the contract on the grounds of duress.