Prenuptial agreements still carry a bit of an image problem. Many people assume they are only for the wealthy, or that raising the subject signals doubt about the marriage before it has even begun. In reality, a Massachusetts prenuptial agreement — also called an antenuptial or premarital agreement — is simply a contract that lets a couple decide in advance how certain financial matters will be handled if the marriage ever ends. In Massachusetts, that decision carries more weight than most people realize.
Here is the key reason why: Massachusetts does not recognize “separate property” in divorce the way some states do. Under the state’s equitable-distribution statute (M.G.L. c. 208, § 34), a Probate and Family Court judge can divide almost any asset either spouse owns — including property one spouse owned before the marriage, inheritances, and gifts — based on a long list of statutory factors. A carefully drafted prenup is one of the few tools that lets a couple set their own rules instead of leaving those decisions entirely to a judge.
▶ Watch: What is a Pre-nup? — a short introduction to what a prenuptial agreement is and what it can do for you.
What a prenuptial agreement can — and can’t — do
A Massachusetts prenup can:
- Define what counts as separate property versus marital property
- Protect a business, professional practice, premarital home, inheritance, or retirement accounts
- Spell out how property and debt will be divided
- Set, limit, or waive alimony (within legal limits)
- Protect children from a prior relationship
- Clarify each spouse’s financial responsibilities during the marriage
A prenup cannot:
- Decide child custody or parenting time in advance
- Pre-set or waive child support — that is the child’s right and is always decided on the child’s best interests at the time
- Include terms a court would find unconscionable, or that would, in the words of Massachusetts’ highest court, “essentially vitiate the very status of marriage”
- Enforce non-financial “lifestyle” clauses (who does the chores, weight requirements, and the like), which courts will not uphold
Who actually benefits from a prenup?
You may want to consider one if you:
- Own a business or professional practice
- Are bringing significant savings, investments, or real estate into the marriage
- Expect a future inheritance or come from a family with wealth
- Have children from a prior relationship whose interests you want to protect
- Carry significant debt you don’t want your spouse to share
- Anticipate that one spouse will pause a career to raise children
- Are entering a second or later marriage
Prenups are not only about protecting one spouse from the other. They also create clarity and predictability, which can reduce conflict and cost if a divorce ever happens.
How Massachusetts decides whether a prenup holds up: the “two-look” test
Massachusetts has not adopted the Uniform Premarital Agreement Act that many states follow. Instead, enforceability is governed by statute (M.G.L. c. 209, § 25) and by case law — most importantly Osborne v. Osborne (1981) and the landmark decision DeMatteo v. DeMatteo (2002).
Under DeMatteo, a court applies two separate reviews, often called the “two-look” test:
-
The first look — fair and reasonable when signed. The court examines whether the agreement was fair and reasonable at the time it was executed. The bar to invalidate it here is deliberately high: an agreement generally survives unless its terms strip one spouse of substantially all marital rights.
-
The second look — conscionable when enforced. Even an agreement that was valid when signed can be set aside at divorce if circumstances that arose during the marriage would make enforcement unconscionable — for example, leaving the contesting spouse without enough property, support, or ability to work to support themselves.
That second look is unusual. It means a prenup signed years ago could still be challenged today. In one well-known Massachusetts case, an agreement that was valid at signing was not enforced at divorce because the marital home had fallen into serious neglect and enforcing the prenup would have left one spouse without adequate resources — a change in circumstances beyond what the couple had contemplated.
What makes a prenup more likely to be enforced
Because of the two-look test, how a prenup is prepared matters as much as what it says. Agreements are far more likely to be upheld when:
- The agreement is in writing, signed, and notarized
- Both parties make full and fair disclosure of their assets, debts, and income
- Each party has their own independent attorney
- Both sign voluntarily, free of pressure or duress
- There is adequate time before the wedding — an agreement presented the night before the ceremony invites a challenge
- The agreement includes a clear waiver of the rights each party is giving up
Prenup vs. postnup
Already married and wish you had a prenup? Massachusetts also recognizes postnuptial agreements, which spouses sign during the marriage. The Supreme Judicial Court confirmed they can be enforceable in Ansin v. Craven-Ansin (2010) — but courts apply heightened scrutiny, because spouses already owe each other a duty of good faith. A postnup is a useful option, but it is generally harder to enforce than a prenup signed before marriage.
Prenups, alimony, and protecting your assets
A prenup is one piece of a larger “protecting your assets” picture that also includes how alimony and property division work in a Massachusetts divorce. If you are weighing a prenup, it is worth understanding the alimony framework alongside it, so the two fit together rather than working against each other.
Frequently asked questions
Is a prenup only for wealthy people?
No. Anyone with assets to protect, debt to keep separate, children from a prior relationship, or a desire for financial clarity can benefit.
Can we just download a template and sign it ourselves?
It is risky in Massachusetts. Because of the two-look test, the disclosure requirements, and the value courts place on independent counsel, a do-it-yourself agreement is much more vulnerable to being thrown out when you need it most.
Can a prenup really be thrown out?
Yes — under either the first look or the second look. That is exactly why careful drafting and full disclosure matter so much.
Can we change it later?
Yes, through a properly executed amendment or a postnuptial agreement.
How far before the wedding should we start?
As early as possible. Rushing the process is one of the most common reasons agreements are later challenged.
Talk to a Massachusetts family law attorney
A prenuptial agreement is only as strong as the care that goes into preparing it. If you are considering one — or want a postnuptial agreement reviewed or drafted — the family law team at Reeves Lavallee, P.C. can help you protect what matters while keeping the agreement built to last.
Reeves Lavallee, P.C. · 250 Commercial Street, Suite 450, Worcester, MA 01608 · 508-425-6945
This article is provided for general informational purposes only and does not constitute legal advice, nor does reading it create an attorney-client relationship. For guidance about your specific situation, please consult a licensed Massachusetts attorney.
This article was written by a non-attorney member of the Reeves Lavallee, P.C. staff.
