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.

Divorce can be better if you don't do-it-yourself (DIY).

I previously wrote about the dangers of do-it-yourself divorce. This article is a little different in which I am writing about why people getting divorced should consider alternatives to DIY and the advantages to the alternatives.

Certainly there are some people that do very well with do-it-yourself divorce. In particular, people with short term marriages, no assets, no debts, and no children can manage a divorce themselves. In this situation, if both parties agree that they should get divorced, pay nothing to each other, that all property and debts have been divided and they never want to have anything to do with each other, they they should be able to do the divorce paperwork themselves. Also, people who can't afford attorneys may have no choice about the matter. They may not qualify for legal services representation and may be forced to figure out how to get divorced without lawyers. However, even people who ultimately do their divorces themselves have options and should take advantage of services that lawyers offer.

Many family law attorneys offer free initial consultations. In these consultations, lawyers may discuss pitfalls in proceeding without a lawyer and may also give guidance.

Massachusetts, and other states, now allow attorneys to provide limited representation. This means that people getting divorced can pay a lawyer to do a limited task. Just paying a lawyer to review an agreement may save a party years of overpayments or underpayments. This is a compromise between paying a lawyer to handle everything and not consulting a lawyer at all.

The more contentious the divorce, the greater the need for hiring a lawyer. Abraham Lincoln was correct when he uttered his famous quote. People negotiate differently when a third party does the negotiation. A lawyer should negotiate out of logic and not out of emotion. All too frequently, people who handle their own negotiations focus primarily or even exclusively on the emotions. It is not unusual for people to try to negotiate to get revenge on their spouse. Lawyers should avoid seeking revenge. Instead, lawyers should focus on the rights and obligations as established by the law. Merely having a third party negotiate can simplify and shorten the negotiations. Some people abandon their emotional need for revenge when they are not negotiating directly with their spouse. 

Lawyers guide clients through the family court system. Many people waste time and resources because they don't understand the proper procedures and concepts. It is not unusual for Judges to continue court hearings because do-it-yourself litigants are not prepared for the hearings. I have had many cases in which I have explained to opposing pro-se litigants the procedure or law and the case settled immediately.

Family lawyers can refer people to other professionals who can assist in the divorce process. Appraisers, therapists, mediators, insurance agents, financial advisors, accountants may all be necessary to move the parties through the divorce process. Additional documents may be needed as part of the divorce process. Documents such as wills, powers of attorney, deeds, documents to transfer assets may all be needed. It is not enough to require insurance coverage. The parties need to talk to an insurance agent to implement the requirements.

Do-it-yourself divorce may appear to be a good choice for many people.  However, before they finalize a divorce, they should consult a family law attorney.

Dangers of Do-It-Yourself (DIY) Divorce

Hiring a lawyer to handle your divorce can be a very expensive proposition. Many people choose to represent themselves instead of paying an attorney. This is commonly called “do-it-yourself” divorce or simply DIY divorce. While this may save money in the short run, it may be very expensive in the long run.

I compare getting divorced without an attorney to purchasing home owner's insurance. People hate paying the premiums and if a claim isn't filed, they feel like they wasted the money. However, if a casualty occurs, people are extremely happy that they have insurance. The same thing happens with lawyers. If a problem occurs, people are happy that they have a lawyer. Once a problem occurs, if you don't have a lawyer, you may be stuck with something that can't be changed. Judges hold people who do divorces without attorneys to the same standards as experienced lawyers. They don't tell people that they can do things better. They don't tell people when they make mistakes.

Some people think that they can get divorced by themselves because they can purchase forms from the internet. These internet forms can be particularly dangerous for people. These packages claim to provide all the required documents that a couple needs to complete and file a divorce in Massachusetts on their own. These forms may appear to be tailored for Massachusetts but the basic form may be designed for all states or be modified from a form for a different state. As a result, there may be provisions that don't work well or at all in Massachusetts. These forms tend to be one size fits all. Every marriage is different from others and every divorce is different from all others. The forms don't have the ability to address the unique problems of every divorce and they don't explain how the law applies to each party and the children. Lawyers don't just draft documents, they help clients understand how the agreement and the law applies to their unique situation.

People who do their own divorces and draft their own divorce agreements often have problems for many different reasons including:

• They don't understand the legal jargon
  
• They make mistakes filing out forms
  
• They miss filing dates
  
• They agree to court orders without understanding their legal and financial consequences
  
• They don't understand the tax consequences and don't consider taxes when making decisions
  
• They are unable to respond to legal issues that arise unexpectedly
  
• They think that judges will protect them. In some instances judges will manipulate people without lawyers to agree to terms that the judge has no power to order without an agreement.
  
• They agree to things that cannot be reversed or modified.
  
• They don't know the rules of court. The rules of evidence can be particularly problematic. Frequently people go to court thinking that they can prove something at court only to find out that they can't present any evidence at all because they don't understand the rules of evidence.
  

Some people have filed their own forms and thought that they were divorced when they were not. They then married another person and committed the crime of bigamy.

It is cheaper to do the divorce correctly the first time. Hiring an experienceddivorce lawyer may save money when you consider that some of the decisions made in a divorce will last the rest of the person's life.