Prenuptial Agreements
Another area addressed by PNAs is what happens after death. Generally, parties want to protect each other, but also want to protect their children from the previous marriage. There is usually some allocation between the surviving spouse and the party's own children, depending on the surviving spouse's ability to take care of him/herself after the death.
Laurie Israel drafts prenuptial agreements (PNA) in situations in which she thinks the agreements will help the marriage succeed rather than damage it.
For some couples, especially those entering second marriages, PNAs can certainly be a helpful way to take care of financial and estate planning issues. In the past, PNAs were considered legally unenforceable, as creating dissension and strife between the to-be-married couple right before the marriage. It is true that PNAs can be coercive and lead to unfair bargaining and inequitable agreements. Can you imagine a fiancé giving you a draft of a PNA two days prior to the marriage, after a large wedding has been planned and all invitations sent? This has actually happened to people. Most attorneys believe that there is a substantial uncertainty whether a PNA executed under these circumstances would be upheld by a court.
Generally, a PNA is held to be valid if entered into freely and voluntarily by the parties, if each party was vigorously represented by a lawyer as advocate, and if the PNA was fair when executed. It also requires that the terms of the PNA turn out to be fair at the time the parties divorce. See the Prenuptial Cases portion of this web site.
A PNA usually describes what happens to the parties' joint and separate funds and assets obtained during marriage, and may carve out a “marital enterprise” of joint marital economic venture. Perhaps all income earned by the parties after the marriage will be shared. Sometimes increases in retirement and other assets after the marriage are shared by the couple, sometimes they are saved for their respective children. If one party moves into the other party's home as marital residence, there might be provisions regarding what happens to the house and a spouse's occupancy after divorce or death.
PNAs also (generally) have provisions on how to divide property if there is a divorce. Sometimes there are disappearing or “sunset” provisions so that the longer one is married (e.g., 5, 10, 15, or 20 years), the more intertwined the couple's financial resources are allowed to be. This comports with Massachusetts divorce law, and reflects real-life emotional and economic facts: the longer people are married to each other, the more committed they become. Their increase in connection and loyalty also generally spills over into a growing love and affection between each party and the children of his or her spouse.
Some PNAs purposely leave out some issues in the Agreement. This is to allow the couple to build an area of “marital venture” that is uncertain and almost entrepreneurial. These areas tend to positively feed a marriage. And if there is a divorce, absent agreement, these issues are left to the very intricately-developed Massachusetts equitable divorce law. This law (and the judges interpreting it) generally resolve complex problems with wise solutions.
Another area addressed by PNAs is what happens after death. Generally, parties want to protect each other, but also want to protect their children from the previous marriage. There is usually some allocation between the surviving spouse and the party?s own children, depending on the surviving spouse's ability to take care of him/herself after the death.
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