The ties that bind: informal prenuptial agreements enforceable in Massachusetts even if drafted without advice of attorneys

Couples should consult with attorneys before signing a prenuptial agreementFamily mediators will want to take note of a decision reported this week by Massachusetts Lawyers Weekly regarding the enforceability of premarital agreements in the Commonwealth.

In a case known as Eyster v. Pechenik, a Middlesex Probate and Family Court judge has ruled that a spouse can enforce a premarital agreement in his or her divorce even when the agreement has been drafted by the couple themselves without the assistance of counsel. The agreement will be enforced if there was full disclosure of each parties’ assets prior to its execution, and so long it is fair and reasonable when signed and fair and reasonable when subjected to a “second look” at the time of its enforcement.

According to Massachusetts Lawyers Weekly, the husband drafted the agreement after consulting articles from books, newspapers, and magazines, and both parties opted not to seek the advice of attorneys prior to signing it. Among other things, their agreement provided that property acquired prior to and during the marriage would remain with the party who acquired it. At the time of their divorce, the wife argued that the agreement was ambiguous and therefore unenforceable.

This stands as a cautionary tale not only for couples contemplating marriage but also for mediators who assist couples in negotiating the terms of premarital agreements. There is no doubt that premarital agreements, and the conversations that lead up to their creation, can be a useful means for couples to define how best to divide their assets upon death or divorce. Mediation can play an important role in that process, helping couples make those decisions together.

However, premarital agreements hold significant long-term legal consequences. And informed decision-making is of course integral to the mediation process. Mediators will therefore want to remind their clients of the importance of seeking independent legal advice before signing on the dotted line.

(The decision, alas, is not available for free online, although you can, if you wish, pay to have Massachusetts Lawyers Weekly fax it to you. Warning: MLW will charge you the exorbitant sum of $34.50 to do so. You can also read the decision on p. 35 of the print version of the March 27, 2006, edition of MLW.)

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