prenup & pension

What is the name of your state? IL
My SO is still involved in property settlement. His prenup (from 1997) states that her pension is hers. I've read on the internet that you can not protect pension in a prenup. This is due to ERISA laws that only a spouse can waive rights. Has anyone run into this? It would mean a lot of extra money is that is the case.

Any interpretation of the prenup is a matter of fact for a judge to determine based on the case law. (Dominick v. Dominick, 18 Mass.App.Ct. 85, 92, 463 N.E.2d 564 (1984), [FN29] as well as some of the factors listed in G.L. c. 208, § 34. Rosenblatt v. Kazlow-Rosenblatt, 39 Mass.App.Ct. 297, 301, 655 N.E.2d 640 (1995). )

I can tell you this however, the MA. (I know, a different state but same subject) State Supreme Court is currently hearing a case to define the 'fair and reasonable' standard.

In any event, if the money is of sufficient value (and here I'm talking about at least $100,000) then hire an attorney to challenge the prenup. If not, it's not worth the time, effort or money.

Remember, it's a contract. Nothing more or less.

fairness

What about the issue of fairness at the time being executed. This prenup will basically leave him filing bankruptcy while she has several 1000's of dollars from the sale of a home, plus 1/2 the marital assets.

worried gal said:

What about the issue of fairness at the time being executed. This prenup will basically leave him filing bankruptcy while she has several 1000's of dollars from the sale of a home, plus 1/2 the marital assets.

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that is not an issue. he signed it. He didn't have to. So, unless he wants to spend $1,000s more trying to get it nullified, tell him to move on.

And the issue is NOT how much she has, it's how much she has as a result of the marriage. So if she entered the marriage with a lot of those assets and kept them seperate, they should not be subject to division, even without a prenup..

It depends on how the pre-nup was written. If it specifically states that the spouse-to-be waives her right as a tbd-% beneficiary of a retirement plan, then that spouse has to live up to what he/she signed. There is a backdoor way to get around this stipulation- namely if the spouse-to-be signed the document without advice of counsel. But this could be quite weak, as an argument, if that person had a college education, and knew fully well what the language meant in the pre-nup. If someone signs a Massey pre-nup, do it with eyes wide open. Before you consent to anything, know the consequences.