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Pre- or postnuptial agreements dealing with debt

Massachusetts is one of the states that allows postnuptial agreements, but a couple can also create a prenuptial agreement. If two people have different attitudes about money and debt and one tends to spend more than the other, a pre- or postnuptial agreement might protect one spouse from the other's debt in the event of a divorce.

Although a postnuptial agreement may face closer scrutiny because it can be easier for a person to be coerced into signing one, both types of documents must stand up to similar examinations. In addition to a lack of coercion, both people must have had adequate legal counsel. This means each person should have a separate attorney. If an agreement appears unfair, such as assigning to majority of debt to one spouse, there should be an explanation. An agreement may even include a provision that allows one spouse to carefully track the credit and spending of the other. This can be helpful if one spouse has a problem like a gambling addiction.

Couples should be aware that creditors may still consider jointly held debt as belonging to both even if only one person incurred it. Furthermore, if a postnup appears to be an attempt to defraud a creditor by assigning debt to a spouse who files for bankruptcy, it may be dismissed.

An attorney might be able to help a client craft a pre- or postnuptial agreement that is likely to stand up to legal scrutiny. Such an agreement may also make the process of divorce and property division less difficult and reduce the likelihood of a divorce dispute. Couples with children should keep in mind that it is not appropriate to address issues of custody or child support in the prenup or postnup. In fact, doing so could invalidate the agreement.

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