Does a prenuptial agreement need to be fair?

Yes and no.

In one of my previous posts, I had talked about the criteria for upholding a prenuptial agreement in court and one of the factors was fairness.  When I talk about fairness, it is on a spectrum of how unfair it is.  It’s not whether the prenuptial agreement is fair – or not.

A prenuptial agreement in many situations creates an “unfair” situation because in most cases, the parties will agree to keep assets held before the marriage as “separate property” and assets acquired during the marriage as “marital property.”  If there were no prenuptial agreement in place, during a divorce, a Massachusetts probate and family court judge will apply the legal standard of “equitable division” in deciding how to split up property between the husband and wife.  Equitable division is a fancy legal term for – you guessed it – fair.

So signing a prenuptial agreement is not about fair because if everyone wanted it to be fair, we’d just use the default divorce laws.  A prenuptial agreement and the negotiation process that takes place before signing one is really about both parties fully disclosing their assets, talk about money, and their financial goals.  So many couples marry without knowing much of anything about their partner’s assets and liabilities.  Yet when you look at the national divorce rate – 50% – the most common cause of divorce is disagreements over finances.  Given that finances is such a big part of marriage, it makes sense then to talk about it before getting married and writing it down in a prenuptial agreement helps the couple to facilitate the process.

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