Putting a Prenuptial Agreement in Place? Be Sure Both Sides Have an Opportunity to Consult with Legal Counsel

Generally, in order for an antenuptial agreement (also known as a prenuptial agreement) to be considered valid and enforceable in Massachusetts, the agreement must meet the following elements:

  • it must be in writing;
  • signed by the parties;
  • signed voluntarily and under no signs of duress or fraud;
  • made after full disclosure of the parties’ assets;
  • the agreement must be fair and reasonable, and enforcement must not be against countervailing equities;
  • the parties must have adequate opportunity to consult with independent counsel;
  • the parties must understand and clearly indicate the rights which they are contracting away; and
  • the parties must not relieve themselves of their legal obligations during the marriage through the agreement.

One of these important requirements for antenuptial agreement to be valid is the ability of both parties to consult with independent counsel. In particular where one party asks the other to sign the agreement before marriage, the courts will scrutinize the circumstances surrounding the signing to ensure that each party had a meaningful opportunity to consult with his or her own counsel.

In one unpublished appellate case, the court invalidated a prenuptial agreement on this basis, where the wife was from Brazil and spoke limited English. Allen v. Allen, 90 Mass. App. Ct. 1101 (2016). In that case, the husband’s attorney drafted the agreement. The wife visited a Portuguese-speaking attorney who translated the agreement and read it to her out loud; however, that attorney gave the wife no legal advice. The appeals court, agreeing with the trial judge, found that the wife did not have adequate opportunity to consult with counsel:

“As the judge observed, ‘Even if Attorney Kesselman explained the terms of the Agreement to the parties when he met with them, he represented only Husband. Wife’s admission to Attorney Guerreiro that another attorney already had explained the Agreement to her does not change that. Attorney Kesselman could not give legal advice to Wife about the consequences of the Agreement to her. Attorney Guerreiro did not represent Wife and did not give any legal advice to her about the Agreement.’ Contrary to the statement in the premarital agreement that the parties each “had independent legal counsel of his and her own choosing prior to their execution” of the agreement, Maria was unrepresented.” Allen, at 2.

In another case, the judge’s decision to invalidate the prenuptial agreement was also partially based on a lack of meaningful opportunity to consult with counsel. The court in that case noted:

“Although each party was represented by counsel, the evidence supports the judge’s finding that the negotiation was brief and one-sided. The mother first met with her attorney on October 31, 2002. In mid-November, the mother’s attorney sent a series of draft proposals to be included in the agreement to the father’s attorney. The father rejected the proposed terms and on December 16, 2002, the father’s attorney sent the father’s terms by electronic mail to the mother’s attorney with a message that due to the wedding scheduled for the following week the father “would like to sign this tomorrow as relatives are arriving on Wednesday and … schedules will be quite hectic after that.” Although the mother’s lawyer informed the father’s lawyer that the father “ha[d] to put something on the table” in light of the enormous disparity in the assets of the parties, the father did not alter his position. The mother agreed to the terms of the proposed agreement.” Schechter v. Schechter, 88 Mass. App. Ct. 239, at 256-257 (2015).

It is important to note that actual consultation with an attorney is not required in order for an antenuptial agreement to be valid; it is only the opportunity to consult with counsel which is required.

2017 Massachusetts Child Support Guidelines

2017 Massachusetts Child Support Guidelines

Every four years, the Massachusetts child support guidelines task force assesses the child support guidelines, makes recommended changes, collects comments from the public, revises further, and then presents them to the Chief Justice of the Trial Court, who signs them into application, typically going into effect on a specific future date. This process has just completed, with the new 2017 Massachusetts Child Support Guidelines going into effect on September 15, 2017. We’ve dived in since they were released yesterday and here is our initial commentary, with links to the guidelines and supporting materials on mass.gov. Enjoy and feel free to submit comments below.

The 2017 Massachusetts Child Support Guidelines & Parenting Time

The 2013 Massachusetts Child Support Guidelines introduced, for the first time, an intermediate calculation for child support, to be used in circumstances where the “parenting time and financial responsibility are shared in a proportion greater than one-third, but less than 50%.” This intermediate calculation averaged the base child support guidelines calculation as if one parent was with the child or children approximately two-thirds of the time, with the calculation if the child or children spent approximately equal time with both parents.

The 2017 Massachusetts Guidelines, effective September 15, 2017, eliminates that intermediate calculation, and in its commentary, explains why in somewhat scathing terms:

“The Task Force agreed that the provision relating to these circumstances needed to be eliminated. The Task Force considered public comment, attorney and judicial experience, the 2008 Report of the Child Support Guidelines Task Force, and the Final Report of the 2012 Task Force when making this determination. The 2012 change [to create the intermediate calculation] increased litigation and acrimony between parents, shifted the focus from a parenting plan that is in the best interests of the children to a contest about a parenting plan that attempts to reduce a child support order, and failed to create the consistency in child support orders that it sought to create.”
(emphasis added).

The 2017 Guidelines leave two methods through which child support should be calculated:

1. Basic Calculation – the basic calculation presumes that the children have a primary residence with one parent and are spending approximately one-third of the time with the other parent. There is a rebuttable presumption that the child support calculation should be the child support order.

2. Cross Guidelines – “[w]here two parents expect to or do share equally, or approximately equally, the financial responsibility and parenting time for the children, the child support order shall be determined by calculating the guidelines worksheet twice, first with one parent as the recipient, and second with the other parent as the recipient.” In short, calculate child support both ways, and the difference is the presumed child support order.
Of note is the retention of the consideration of the financial responsibility in the cross guidelines calculation, and not in the basic calculation. Further, the 2017 Guidelines places an increased emphasis on the ability of a court to deviate from the Guidelines. The amount that the Guidelines calculates is still the presumed order, but the Task Force seemed to place additional emphasis on the ability to deviate from that figure if it is in the best interests of the child. More on the issue of deviating from the 2017 Guidelines in a future post.

The 2017 Massachusetts Child Support Guidelines & Proportional Sharing of Child Care, Health/Vision/Dental Insurance Costs

The 2017 Massachusetts Child Support Guidelines continues with the historical approach of deducting the costs of child care, health insurance, dental insurance, and vision insurance from a parent’s available income for purposes of calculating child support. The Task Force has further added a second step, so that parents are sharing, at least somewhat in proportion to their respective incomes, these costs.

Let’s take an example to illustrate this point. Let’s say that that Pat and Dana have one child. Pat is the primary wage-earner, and earns, $2,000 per week. Pat’s employer-provided health and dental insurance costs $100 per week. Dana earns $1,000 per week. The child lives primarily with Dana, spending approximately one-third of the time with Pat.

Under the 2013 Guidelines, Pat’s presumed child support payment to Dana is $362 per week. Under the 2017 Guidelines, Pat’s presumed child support payment to Dana, which adjusts twice for Pat’s contributions towards health insurance and dental insurance (as well as vision insurance and child care costs), would be $325. So, in this particular example, the payor’s child support payment goes down using the new 2017 calculation.

When the payor in an existing child support order is providing for the cost of health insurance, dental insurance, vision insurance, and/or the cost of child care, it would be beneficial for him or her to speak with an attorney to discuss whether it is advisable to modify his or her child support obligation.

The 2017 Massachusetts Child Support Guidelines & Children between the Ages of 18 and 23, and Contribution towards the Cost of College

In addressing the payment of child support for children that are over the age of eighteen and have graduated from high school, the 2013 Massachusetts Child Support Guidelines provided that a
“Court shall exercise its discretion in ordering support and/or college contribution. The Court shall consider the reason for continued residence with and dependence on the Recipient [of child support], the child’s academic circumstances, living situation, the available resources of the parents, the costs of post-secondary education for the child, the availability of financial aid and the allocation of these costs, if any, between the parents. Contribution to college costs is not presumptive, but is based upon the above factors. If a specific college contribution is ordered, this contribution shall be considered by the Court in setting the weekly support order, if any.”

The 2017 Massachusetts Child Support Guidelines, effective September 15, 2017, provides more guidance for parents, judges, and attorneys, in how to address the issue of children that have graduated from high school but are not yet emancipated for purposes of a child support order, or an order for a parent or parents to contribute towards the cost of that child’s college education.

The 2017 Guidelines differentiates between children under 18 and children over 18 in the formula itself. Table B, which is used for adjusting the formula on the number of children in the family, has transformed from two columns to five:

Table B in the 2013 Guidelines

Table B in the 2017 Guidelines

The result is a 25% adjustment downward for children over the age of 18. As explained in the Commentary to the 2017 Guielines, his considers the possibility that children of that age group might not be living full-time at a parent’s residence if living at a post-secondary educational institution, and have the ability to work and contribute towards household expenses.
The 2017 Guidelines explains that courts retain discretion in awarding child support for children between the ages of eighteen and twenty-three. The 2017 Guidelines also eliminate as factors for consideration in setting an order for a child over the age of 18 “the costs of post-secondary education for the child,” and “the availability of financial aid and the allocation of these costs, if any, between the parents.”

On the issue of contributing towards college expenses, the 2017 Guidelines adopts a position that many Probate & Family Court judges have articulated. This issue remains as not presumptive, but reincorporates the factors of “the cost of post-secondary education” and “the availability of financial aid,” among others, in considering whether to order a parent to contribute towards the cost of college.

The Guidelines establishes a presumptive cap on the contribution to pay for college of 50% of the cost on undergraduate in-state costs of the University of Massachusetts Amherst, including fees, tuition, and room and board. This limit can be exceeded if “the Court enters written findings that a parent has the ability to pay a higher amount.”

Lastly, the 2017 Guidelines continues the 2013 Guidelines’ consideration of the amount of a child support order if also ordering a parent or both parents to contribute towards the cost of college, and vice versa.

The revision and update of the child support guidelines is a significant event in Massachusetts divorce and family law and understanding the differences between the guidelines currently in effect and those which will go into effect on September 15, 2017 is critical for any case involving children, up to the age of 23. We’ll continue to post helpful content and commentary on the updated law and will continue to provide free consultations to clients and potential clients who need this issue assessed in their cases. To schedule a free consultation, contact the main office at 978-225-9030 or schedule a consult from our home page.

Retroactive Modification of Child Support Payments

Is the retroactive modification of child support payments a possibility in Massachusetts?

Say, for example, that a payor party’s income increases. The receiving party does not file for modification right away–perhaps because she does not know of the increase in income. Once she does file, may the Court increase the payments retroactively, going back to the date that the payor party’s income changed?

In an interesting recent case, the Massachusetts Appeals Court held that retroactive modification of child support was valid. Specifically, where the parties agreed in their separation agreement that future modifications of support are retroactive to date of change of income, the court has the jurisdiction to modify retroactively to that date. This is true even when the date predates the filing of the complaint for modification. 1

In the case, Calabria v. Calabria, the parties were divorced in 2010. The husband was ordered to pay $416 semimonthly in child support. In their separation agreement, the parties agreed that in the event of a change in income or employment, they would immediately notify the other party, seek modification, and modification would be retroactive to the change of employment or salary date.

In 2013, the wife filed a complaint for contempt, claiming among other things that the husband failed to notify her of a change in his income. As the parties exchanged financial information during that proceeding, the wife found out that the husband was consistently making more by 2012 than he did at the time of divorce. She filed a complaint for modification.

The trial judge applied the Massachusetts Child Support Guidelines dating back to the time period of 2011, 2012, and 2013, and computed a deficit of $9,264 for the prior years. The husband appealed, claiming that the judge was without authority to make any increase retroactive to a date earlier than the date of the complaint for modification. The Appeals Court disagreed.

The court specified two circumstances in this case which particularly allowed for this decision. First, the parties had specifically provided for retroactive adjustment of child support in their separation agreement. Second, the adjustment fostered the best interests of the parties’ child and did not derogate from the purposes of the law on modifications of child support.

“Here, we are presented with a modification judgment that gives effect to a predivorce agreement of the parties concerning retroactive adjustment of child support and that results in an increase rather than a decrease in child support during the period preceding the complaint for modification,” the Court explained. “In such circumstances, the objective of [the law] to furnish finality and clarity to orders for child support in order to facilitate prosecution of an enforcement action based on the support order is not impaired by the possibility that the support obligor might assert claimed defenses to payment.” 2

1 Calabria v. Calabria, No. 16-P-1397, May 31, 2017 – July 13, 2017.

2 Id., at 5.

Impotence as Grounds for Divorce in Massachusetts

A touchy subject to discuss, but one which becomes an issue from time to time, is the subject of impotence as grounds for divorce. In Massachusetts, a spouse may choose to request either an annulment or a fault-based divorce on the grounds of the other party’s impotence. Choosing to file for divorce means the spouse may request the division of marital property in line with the applicable domestic relations statutes.

According to Black’s Law Dictionary, impotence means “the incapacity for copulation or propagating the species,” for purposes of medical jurisprudence. It is important to discuss here that impotence does not mean infertility for purposes of family law and divorce. Infertility, referring to an inability to conceive a child, is not a ground for a fault-based divorce in Massachusetts. However, impotence, referring to an inability to copulate, is grounds for divorce or annulment.

Only a few (generally older) cases have addressed the issue of impotence as fault grounds for divorce in Massachusetts. The cases typically deal with issues of impotence which exist at the time of marriage, and not issues which develop later in the marriage.

In one case, the husband filed for divorce based on impotency where sexual intercourse was impossible without causing the wife such pain as to endanger her health. 1 In that case, after the parties lived together for nearly seven years, a physician advised them to separate. The husband’s request for a divorce was granted. In another case, the husband was likewise granted a divorce where, unbeknownst to him, the wife suffered from congenital physical abnormalities which prevented her from engaging in sexual intercourse. 2

If you have any questions about divorce or other domestic relations issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

1 S. v. S., 192 Mass. 194 (1906).

2 M. v. M., 342 Mass. 773 (1961).

Durational Limits on Alimony Obligations are Constitutional

In 2011, the Massachusetts Legislature passed the Alimony Reform Act, making significant changes to laws concerning alimony in the Commonwealth. Among those changes were durational limits imposed on alimony obligations from marriages that lasted fewer than twenty years.

In essence, those durational limits act as presumptive termination dates for alimony payments. For example, in the case of a four-year marriage, alimony may terminate after two years of payments upon divorce. Under some circumstances, a party may request that the court deviate from the prescribed termination date, where deviation is required in the interests of justice.

But are those durational requirements constitutional?

In two recent cases, the Massachusetts Supreme Judicial Court considered whether the durational limits operate as an unconstitutionally retroactive law. The Court held that the durational limits were in fact constitutional.

In Van Arsdale v. Van Arsdale, the Court considered a direct appeal where the husband’s alimony obligation was terminated. 1 The parties married in 1979 and divorced in 1997. The husband was ordered to pay $3,333 per month in child support and $3,333 per month in alimony. The parties agreed to review the husband’s alimony payment obligations when their youngest child became emancipated and when the husband retired from full-time employment, so long as he was at least 62 years old.

In 2005, the husband filed a complaint for modification, as the parties’ youngest child had become emancipated. The parties agreed to discontinue child support payments and increase alimony payments to over $7,500 per month. In 2015, the husband successfully sought to terminate his alimony obligation based on the fact that he retired, and based on the Alimony Reform Act’s durational limits. The wife appealed.

In reviewing the wife’s argument that the durational limits were unconstitutionally retroactive, the Supreme Judicial Court considered whether the law attached new legal consequences to events that were completed before the law’s enactment. “The durational limits merely create a presumption of termination that a recipient spouse…can rebut by showing that deviation from the limits is ‘required in the interests of justice.’ Applying such a presumption is not impermissibly retroactive,” the Court noted. 2

The Court reasoned that a party may argue for a deviation from the durational limits, which would require the trial judge to consider the parties’ circumstances at the time of filing, and not at the time of divorce. “By requiring such a temporal focus, the statute ensures that any new legal consequences that result from the durational limits are not the result of actions that predated the act, but rather are based on the circumstances of the parties as they exist before the judge deciding a modification complaint,” the Court explained, upholding the durational limits. 3

Following its decision in Van Arsdale, the Court decided the case of Popp v. Popp. 4 In that case, the husband was ordered to pay $12,000 per month in alimony. In 2015, the husband sought and received a modification of those payments, as he had retired. The judge also applied the new alimony durational limits and ruled that payments would cease in 2020, based on the length of the parties’ marriage.

Similarly to the Van Arsdale case, the wife in Popp claimed that the durational limits on alimony payments were unconstitutional; she also claimed that the trial judge failed to consider certain factors, such as her ability to maintain marital lifestyle and her lost economic opportunity as a result of the marriage. In line with the Van Arsdale decision, the Supreme Judicial Court held that the durational limits were not unconstitutional and upheld the trial court’s decision.

If you have any questions about domestic relations issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

1 Van Arsdale v. Van Arsdale, SJC 1-2223, March 6, 2017. – May 31, 2017.

2 Id., at 8.

3 Id., at 9.

4 Popp v. Popp, SJC 1-2228, May 31, 2017.