Monday, February 9, 2015

Pre-Nuptial Agreements are not automatically enforced.

Pre-Nuptial Agreements are not automatically enforced.

Pre-nuptial agreements in Massachusetts are enforced if they are fair at the time of the execution of the agreement and fair at the time of the enforcement of the agreement. Fairness at the time of the execution means that there was complete financial disclosure, had the ability to obtain advice of counsel, the agreement was free of duress, misrepresentation, and fraud and the terms are fair. Since the agreement must also be fair at the time of enforcement, the Courts take a “second look” at the agreement and view it in the context of the financial circumstances at that time. The agreement will be enforced unless the court finds that it is unconscionable. This means that the agreement will be enforced unless the agreement would leave the contesting spouse without sufficient property, maintenance, or appropriate employment to support herself.

In a recent case, Kelcourse v.Kelcourse, Mass.App.Ct. (Jan. 21, 2015), the court refused to enforce a pre-nuptial agreement. The agreement on its face appeared fair. The agreement gave the
Wife a house and alimony as part of the settlement. The problem was that the house needed over $300,000.00 in repairs and had negative equity. The Wife lacked funds to repair the house and, due to the negative equity, was unable to sell the house. The Court found that the condition and finances of the house rendered the agreement unconscionable and unenforceable.


The Kelcourse case means that in Massachusetts the second look is a real and substantial examination. The Court won't enforce the agreement if the spouse won't be able to support herself. In other words, disclosure and lack of duress is not enough to make an agreement enforceable. The second look must examine the circumstances to see if the facts and enforcement would shock the conscience.

If parties want a pre-nuptial agreement they should consult family law attorneys to advise them. This is not an area where parties should do-it-yourself. When the parties seek to enforce the agreement it may be too late to fix any problems.



Sunday, February 8, 2015

In Massachusetts, home improvement contractors need to follow the rules.

Massachusetts legislation protects homeowners from the unscrupulous contractor. They regulate
Violation of any of these requirements can result in criminal charges or, in a civil case, payment of treble damages and attorney fees of the homeowner.  A recent case, Groleau v Russo-Gabriele (Norfolk Superior Court No. 2012-1818) (Nov 26, 2014), the court found that writing a contract that took away the homeowner's right to arbitration was an unfair or deceptive act. As a result, the contractor had to pay the damages the homeowner incurred to finish the construction and pay treble damages and attorney fees.

This case shows that contractors have to comply with the state regulations and that homeowner's can't contract away their protections. It is a complicated area of the law. Contractors should consult an attorney before soliciting business from homeowners. Homeowners should consult an attorney before signing a contract for home repairs.

Sunday, February 1, 2015

The New Massachusetts Alimony Law – A Deal is a Deal

In 2011 Massachusetts enacted an alimony reform law. This law changed many aspects of alimony including imposing termination of alimony when the payor reaches the maximum retirement age and when the payee cohabits. Since enactment of this law, lawyers and Judges have been struggling with the question of how do these changes affect prior alimony agreements and judgments. On January 30, 2015 the Supreme Judicial Court answered this question by stating in essence that a deal is a deal. The Court held that the limits for cohabitation and retirement do not apply retroactively to alimony agreements and judgments that pre-date the enactment of the new law.

This interpretation of the new law does not apply to all alimony judgments. When parties enter into a separation agreement, they have the ability to specify that the agreement merges into the divorce judgment or survives as an independent agreement. If the agreement merges with the divorce then the agreement may be modified in the future if certain conditions are met. If the agreement survives as an independent contract, then the agreement can't be modified by a judge. It may be modified by agreement of the parties. The new alimony law does not give the courts the power to change any prior separation agreements that survive. This new interpretation only applies to separation agreements that merged into the decree of divorce.

In three cases, Chin v. Merriot, Doktorv. Doktor, and Rodman v. Rodman, the court held that with one exception, all alimony judgments that pre-date the new law are subject to modification as if the new law never went into effect. This means that alimony can change if the terms of the separation agreement or divorce judgment state conditions that will change or terminate the alimony or if there is a material change of circumstances. Reaching retirement age or the recipient of alimony cohabitating only constitutes a material change of circumstances if the agreement specifically states so. Otherwise, there can not be a modification for these reasons.

These decisions indicated that the new law does allow termination of alimony for what is known as “durational limits.” For marriages less than twenty years, alimony is limited to a percentage of the length of the marriage. The longer the marriage, the higher the percentage. Prior alimony awards that had no termination date that are merged into the decree of divorce and the length of the marriage is less than twenty years are subject to these durational limits. As a result, a modification may be filed to terminate alimony under these circumstances.



The new alimony law is very complicated. If you have questions about the application of this law you should consult an experienced family law attorney for advice about your particular situation.