A prenup is an agreement in which you and your partner set out the rules that will govern your property, debts, income, and expenses, among other things.  If you don’t set out these rules, the state of Massachusetts will set them for you (Chapter 208 of the Massachusetts General Laws).    

Though I don’t think premarital agreements are for everyone, the flexibility they provide families is a big selling point for me.  This tool can help partners keep separate debt, or separate property separate.  This provides a lot of protection for you and your beloved.  You can set support obligations (though not child support) for you or your partner.  In my mind, something that is very important, is that you can do this while you are on good terms.  You’re not playing “win as much as you can,” instead, you’re taking an honest look at where you are, and where you think you should be in the future. 

So how exactly do you tie a neater knot?

The first thing is to talk to your family lawyer.  Like I said, I don’t think prenups are for everyone.  Consult with your lawyer about whether its a good idea for you.  If it is a good fit for you.  Each of you should have your own attorney.  In a premarital agreement, you’re looking for a document that is good for and protective of not only you, but the new family you’re about to form.  Thats why I recommend you ask your family lawyer is she knows anyone to recommend for your partner.  You want lawyers who can work together to come up with the best agreement for each of you , but also for the new unit which is both of you.

Next, decide what is important to each of you and to both of you, maybe make a list.  For example, spousal support, a family business, pets? Decide what is important and how you want to deal with it in the event of divorce or death. 

You will each also need a thorough and complete inventory of your assets and liabilities.  Your lawyers will probably have a form for you to fill out.  Many marriages break-up over differences dealing with money.  This is a good time to have a discussion about money, income, debt, and how you each view these things, what they mean to you, what you’re comfortable with etc…

Make sure you provide plenty of time.  Rushed signing on the eve of the wedding are one reason prenups get struck down by courts.

Lastly, trust your gut – one way or the other.  One way to know when a prenup is not for you, is that you’re dead set against it.

In Massachusetts,   Chapter 208, Section 28 speaks to the question of the care, custody, and maintenance of children, including child support, and provisions for education and health insurance in divorce.  This is separate and apart of the child support guidelines - discussed later.

A good stating point is to understand some terms that you’ve likely heard before.

1. Physical Custody: This refers to which parent the child lives with.  Joint physical custody is possible, however, it works best when the parents live near each other – this allows the child to have a steady routine.  This does not mean that if one parent is the sole or primary physical custodian, the other parent can’t see the child.  The other parent has a right to visitation or parenting time with the child.  However, judges have the discretion to deny this if the parent is unfit.   

2. Legal Custody: Here we’re talking about the right and obligation to make decisions about the child’s upbringing.  This mostly refers to the “big stuff.”  For example, religion, schooling, medical care (not bedtime).  This is more easily shared, and the parents can have joint legal custody even if they live very far apart.  Again, parents have a right to legal custody of their children, but it can be denied if the parent is unfit.

One important thing to keep in mind, is that custody (whether physical or legal) are separate and independent of child support.  A parent with no legal or physical custody can be ordered to pay support, and a parent can’t deny the other their custody rights due to non-payment of support. 

The court makes decision regarding custody based on the best interests of the child.  Decisions about child support are based on the child support guidelines in addition to the best interest of the child.

The Child Support Guidelines define what constitutes income, and sets forth the factors judges should consider in setting the order amount.  Among them are: parenting time, child care costs, the age of the children, provision of insurance or for medical expenses, and other orders or obligations.

Under the guidelines, child support can be modified every three years, or when a substantial change in circumstances has occurred, for example, health insurance was previously available, and is no longer available, etc…

Judges and/or the parents (with judge’s approval) can also deviate from the guidelines, that is come up with some other number, if the amount of the order provided by the guidelines would be unjust or inappropriate in that particular family’s circumstances, and it is in the best interest fo the child.  An example of such a circumstance might be, a child with extraordinary medical expenses, or in very low income, or high income families, where the guidelines create a disparity that is unreasonable for one of the parents.   

We’re almost done with marriage and divorce, next, a discussion on prenuptial agreements, a tool families can use to make the decisions that are right for them, rather than submitting such decisions to a judge.

First things first: Massachusetts is an equitable distribution state.  Some states are community property states, in community property states (California) all the income and property earned and acquired during the marriage is split 50/50 among the partners.  In common-law states (well, state – only Mississippi) the partners each keep property to which they hold legal title, and only property titled jointly is subject to split.

So what does equitable distribution mean? All property, regardless of when or how  it was earned or acquired is subject to equitable distribution – to being diveded in a divorce.  It does not matter whether you bought something before you were married, or inherited it after, everything goes into the big pot. 

In Massachusetts, Chapter 208 is the statute that speaks to divorce.  Section 34 of Chapter 208 speaks to the division of property and alimony.  Equitable does not mean equal – it does not mean 50/50, it means fair or just considering the circumstance.  So what does the court look at when considering what is equitable?

* the length of the marriage

* the conduct of the parties during the marriage

* the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties

* the opportunity of each for future acquisition of capital assets and income

* the present and future needs of the dependent children of the marriage

* the court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit

The court has discretion and can decide how much weight to give to each of these factors, so there is plenty of flexibility given to the judge.  This is why I am an advocate of prenups, as well as of mediation, or collaboration  in divorce.  A lot of discretion is given to judges who do not know your family.  These tools allow you to decide whats best for your family instead of a judge.  More on this in the next post in this family of post.

In this post, I’ll discuss what marriage means in this state – all the rights and responsibilities you get at no extra charge when you get that marriage license. 

First things first: Massachusetts is an equitable distribution state.   

More on this in the divorce post, but this is the first right/responsibility created by marriage in this state.  The responsibility to share all the goods with your spouse/the right to a share of all the goods.   

In Massachusetts, all property, no matter when or how acquired can be considered marital property and subject to division in divorce.  That means it doesn’t matter whether you earned/acquired it before the marriage, or due to an inheritance, or whatever… it all goes in the big pot called marital or community property, and can be divided in a divorce.

The second right/responsibility created by marriage is also a bummer… inheritance.  The right to inherit from your spouse (whether they want you to or not)/the responsibility to provide for your spouse at your death (whether you want to or not).

In this state, if you are married when you die, whether you died without a will (there will be much much more written in this) or disinherit your spouse in your will, they are entitle to take an inheritance.  If you leave no children but some family, your spouse is entitle to the first $200,000, and the remainder is split 50/50 between your spouse and your family.  If you leave children, your estate is split 50/50 between your spouse and your children.

The third right/responsibility is debt. 

As expected, both spouses are liable on debt for which they co-sign.  However, less expected, both spouses can also be liable even if one did not co-sign for debt incurred in benefit of the family.  You can imagine how flexible this standard is.    

Some other include:

The right to share government benefits – such as social security, veteran’s benefits, etc…

The spousal privilege.

Next-of-kin status for making health care decision or filing wrongful death claims.

Enjoyment of your spouse’s retirement benefits.

FMLA leave if your spouse is ill.

Filing taxes as married.

Being the presumed parent of children born in the marriage.

And many more…

Next time, we’ll discuss what Divorce means in Massachusetts.