When to Begin the Prenup Process in Massachusetts?

This post also appears on my blog.

TL; DR: Begin the process three to six months before the wedding (the sooner the better).

Engaged couples have a lot on their minds, especially in navigating the modern wedding-industrial complex. After dealing with venues, caterers, florists, and DJs, the impending lifetime of social and financial obligations is easily overlooked. And that’s where the idea of the prenuptial agreement often lies… in the back of the minds of future spouses, where it may never see the light of day.

But for those forthright enough to begin the prenup process, two questions emerge:

1. How to begin?
2. When to begin?

There’s no need to overanalyze how to begin the prenuptial agreement process. You only need to do two things. First, educate yourself generally on the how prenups work. A great place to start is my (old) blog post Requirements of a Valid Prenuptial Agreement in Massachusetts. Second, find an attorney with a focus on prenuptial agreements. This will most likely be a family law or estate planning attorney.

The more pressing question is when to begin. To answer that question, you need to understand the process of creating a prenup. The process typically follows these steps:

1. Initial discussions between the betrothed. I can’t tell you how many phone calls I get from people that are interested in prenups, but haven’t even mentioned the idea to their fiancé(e). Sorry, but I’m not the first person you need to talk to. Take a deep breath, calm your nerves, casually mention the idea after a nice walk in the park, and then call me the next day. (Alternatively, you could just blame your parents for making you get one, if fits your family scenario.)
2. Identify an attorney and setup a meeting with them. Self-explanatory.
3. Develop a conceptual framework for the agreement. When you meet with your attorney, you’ll start to develop the finer details of the agreement. Depending on the complexity of your situation, this could happen at your first meeting, or it could take longer and require more of those uncomfortable conversations with your SO.
4. Preparation of the first draft(s). This is where your attorney takes the conceptual framework and puts it in written form. It usually takes between a week and a month, depending on how busy and flexible your attorney is. So long as the framework hasn’t changed, there shouldn’t be too much revision to the draft at this point.
5. Identify an attorney for the fiancé(e). It’s important that each spouse have their own attorney. This can be done concurrently with the previous steps. Once the fiancé(e) retains their own attorney, and a good working draft of the agreement is complete, the drafting attorney will share the draft for the other attorney’s review.
6. Counsel and Negotiation. At this stage, each attorney is counselling their client and suggesting revisions that would be in their best interest. The negotiation primarily takes place between the attorneys, but of course the couple will likely discuss the same matters at home. Depending on complexity, this can also take anywhere from a week to a few months.
7. Revision. Once the negotiations are complete, the attorneys will revise the drafts into a final form.
8. Execution. When the final agreement is ready, the couple and their attorneys will all sign it. This can be done at a formal conference room in a fancy office, or more casually, so long as the signatures are properly notarized and no monkey-business is going on.

As you can see, this whole process can easily take a few months to complete. If you read my previously linked blog post about prenup requirements, you’ll know that there must be enough time between the signing of the prenup and the actual wedding for the parties to consider the effect of the prenup. Essentially this means that if you sign the prenuptial agreement right before the wedding, it’s probably not going to hold up in court if necessary.

So, my advice to people is to try to get the prenup signed at least one month before the wedding. And if the process takes between two to five months to complete, then you should begin three to six months in advance.

The Law Office of David E. Peterson, P.C. is a boutique Trusts and Estates practice located in Beverly, Massachusetts.