Uncontested Divorce: The Process in Massachusetts

In some cases, an uncontested divorce may be the most cost-effective and efficient option.

Mike and Barbara have been married for nine years. After meeting in college, they were married when Mike was nineteen-years old and Barbara was twenty-years old. They now realize that they both married too young and probably should never have married each other—their relationship has turned into more of a friendship, and they both want an amicable and uncontested divorce. Mike and Barbara do not have children, and both work as teachers in the public school district in the community in which they live. What is their best option for a divorce in Massachusetts?

In Massachusetts, an uncontested divorce means both parties are in alignment with the major issues that often appear in a contested divorce. These typical topics where issues may be present include topics that involve property, alimony, child custody, child support, and more. If the major issues regarding these topics do not exist, both parties may begin the divorce process together. To obtain a divorce in Massachusetts, the first step is to determine that the parties live in Massachusetts. Assuming that Mike and Barbara mentioned above are able to meet the residency requirement for a Massachusetts divorce, then they will be able to divorce in the Commonwealth.

The next step in a divorce is to draft a separation agreement. A separation agreement defines the way that the couple will divide property, handle alimony, structure the child custody arrangement, and determine child support. When a divorce is uncontested, this means that both parties have no qualms or concerns about these topics in the divorce. Therefore, the parties may proceed forward by including their separation agreement into the filing for the divorce. The separation agreement must be signed and notarized both parties. Mike and Barbara can determine the way that they want to divide their property. They can define the amount of alimony that they wish to establish. If they had children, they can determine who has custody, how they will share custody, and the manner in which they wish to raise their children. Mike and Barbara will attach their agreement to the filing for their uncontested divorce.

Prior to the hearing for the divorce, Mike and Barbara can also file a joint petition to the Probate and Family Court. Typically, in Massachusetts, one party in a divorce who wishes to divorce the other must file a petition with the court to provide the other party of the divorce. The party filing the petition then waits for the spouse to respond to the petition. In an uncontested divorce, however, the parties can complete the petition together. They must complete several statements in support of their petition, such as financial statements. Once this step is complete, the parties must file the documents with the probate and family court in the Massachusetts county where either party resides. If Mike and Barbara complete the joint petition together, they can include the joint petition with the separation that they file. They can state that they had an irretrievable breakdown of marriage as the reason for their divorce. There is no fault to their divorce – they simply wanted to end it together.

Next, once the documents are completed and filed by the parties, the Massachusetts Probate and Family Court reviews the separation agreement and joint petition that are filed with the court. The judge schedules a hearing, usually rather quickly, or approximately within 30 days. During the hearing, the judge confirms that both parties agree to what is included within the filing. The judge also reviews the separation agreement to ensure that the agreement is fair to the parties. If the judge determines that the agreement is not fair to the parties or the children of the parties, the judge may decide that both parties must modify their agreement to make it fair or equitable. If the parties do not agree, then the divorce is not granted. If the parties agree to the modified provisions, then the separation agreement becomes binding. If the agreement is binding, then divorce is granted a few months after the judgment.

Even if you have an agreeable relationship with your spouse or partner, it is important that you find an attorney with the knowledge and experience to protect you, your family, and your assets. If you have any questions about divorce, family law, child support, alimony, or more, please contact our firm. You may schedule a free consultation with an experienced family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online. Do not hesitate to call our offices today.

Merger Versus Survival of Separation Agreements

Experienced family lawyers guide spouses in emotionally fraught divorce proceedings toward a resolution that terminates the marriage. A separation agreement is a crucial part of that process.

A separation agreement memorializes the terms of that resolution and articulates clearly the parties’ mutual rights and obligations. The separation agreement may either be incorporated or “merged” into the judgment of divorce granted by the Probate Court or may “survive” as an independent contract. It is crucial that the parties understand the difference between merger and survival, and that the separation agreement submitted to the probate judge be carefully written to reflect the parties’ goals.

Regarding a merger: A separation agreement whose terms, by stipulation, merge into the judgment nisi of divorce entered by the Probate Court lacks independent significance. Such an agreement is subject to a party’s motion for modification of support, or an order of contempt for noncompliance from the probate judge. Because the Probate Court is empowered to revise its own judgment in this case, modification and contempt are possible.

Let’s contrast a separation agreement whose terms explicitly articulate the parties’ intent that the provisions merge into the judgment of divorce, but that the agreement stand alone as a contract with independent legal significance. In this case, modification and contempt are not as readily reached by the Court. In fact, a party seeking to modify a surviving separation agreement must demonstrate “something more” than a material change of circumstances warrants a revision. A surviving agreement may be enforced either in Probate Court or in a civil proceeding in Superior Court, as with any other breach of contract action.

For the separation agreement to survive a judgment of divorce, the Probate Court must find that it is fair and reasonable; that it is not fraudulent or the product of coercion; and that the parties agreed on its finality. If that bar is met, the parties’ provisions for dividing the marital property will not be subject to further division by the Probate Court, absent “countervailing equities.” An example of that, allowing for judicial revision, would be one of the former spouses being in danger of becoming a public charge.

A separation agreement can be drafted in such a manner that some of its terms survive the judgment of divorce, whereas other aspects merge into the judgment. If the separation agreement is vague regarding the question of its survival, generally, such agreements are held to survive the subsequent divorce judgment that incorporate its terms. Examining the terms of the agreement in its entirety, the parties’ intent is the decisive factor, rather than the court’s predilection. Inartful drafting of the agreement that contains the word “merged” does not in of itself mean the parties wanted the judgment of divorce to absorb the agreement, if contrary indications of intent are expressed or implied elsewhere in the agreement that the parties meant for the agreement to survive.

Child-related matters, such as visitation, custody and child support, remain subject to modification and contempt orders by the Probate Court, as the former spouses cannot bargain away their children’s right to support from either of the parents.

If you have any questions about divorce or family law issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

Full Disclosure of Assets is Needed for Prenuptial Agreements

Peter and Petra are getting married. Peter has considerable assets, including several homes, vacation homes, and checking and savings accounts. He also owns a string of rental properties from which he receives income. He deposits the rental income into an account which is not under his name, but rather the name of a trust he created. Petra, conversely, does not have much by way of assets, save for a modest savings account.

Peter and Petra have agreed to draft and sign a prenuptial agreement. Their respective attorneys have informed them that they would need to fully disclose their assets to the other party—in other words, they would need to inform each other about anything and everything of value they own. Peter has asked his attorney whether he needs to tell Petra about the rental income. After all, it is held in trust; what if Peter chose not to disclose it?

Prenuptial Agreements, Generally

An antenuptial agreement, also called a prenuptial agreement, is a written contract between two people who are about to be married. It serves to set out the terms regarding the division of property in the event of a divorce, along with any provisions for alimony.

Generally, in order for 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.

 

Full Disclosure of Assets

In the above scenario between Peter and Petra, the element of full disclosure is at issue. To ensure that the process of signing the antenuptial agreement is fair and equitable to both parties, the court requires a full financial disclosure of the parties’ assets. In essence, the parties will be viewed to have a confidential relationship which brings with it the duty to disclose, mutually attributed to each party.

Lack of full disclosure may result in the parties’ agreement being invalidated. In some cases, lack of disclosure amounts to a form of fraud, particularly where there is a demonstrable inequity between the parties’ assets. Looking at the above example, this is the case, as Peter clearly possesses more assets than Petra.

In one case, the Massachusetts appeals court invalidated a prenuptial agreement after finding a lack of full disclosure on the husband’s part. Schechter v. Schechter, 88 Mass. App. Ct. 239 (2015). In that case, the husband kept the wife in the dark regarding his financial assets. He also claimed during the divorce proceedings that his primary asset, his real estate company, was a partnership. He claimed that his parents owned a one-half interest in the company. Moreover, the husband then attempted to make a fifty-percent, retroactive distribution of the real estate company’s assets to his parents during the divorce proceedings.

Financial Disclosure Schedules

In order to avoid any potential questions down the line, full disclosure should take place in writing. Each party should, for best practices, draft a financial disclosure schedule, which will be attached to the prenuptial agreement as an addendum. This schedule should clearly delineate and disclose all of the party’s assets to the other party. It should include:

  • a listing of the party’s assets, along with the value of each asset;
  • any outstanding liabilities of the party;
  • the sources and amounts of the party’s income;
  • any interests in businesses, partnerships, etc.; and
  • any expectations of inheritances or other potential assets.

Moreover, the agreement should include a section which makes it clear that both parties have read each other’s financial disclosure schedules, understand it, have acknowledged reading it, and have had the opportunity to consult with an attorney regarding it.

If you need assistance with a prenuptial agreement or have any questions about divorce or family law issues, you may schedule a free consultation with our firm. Call 978-225-9030 during regular business hours or complete our online contact form, and our experienced family law attorneys will respond to your phone call or submission promptly.

 

What Provisions Should be Included in a Separation Agreement?

For just about every couple seeking a divorce, the separation agreement is an exhausting and time-consuming document. With the right attorney, the process can be smoother, but it is imperative that a person seeking a divorce contact an attorney experienced in these matters. Your attorney should work toward drafting a separation agreement on your behalf. But what provisions ought to be included?

Separation agreements should address several mandatory statutory factors related to alimony, benefits, funds, estates, property, and insurance.[1]

These mandatory factors may also include other provisions. For example, separation agreements may include custody provisions, such as the legal and physical custody of any children. They may include living arrangements, parenting plans, emergency decision planning, religious training, and more. Agreements may also include provisions related to child support, such as the amount, costs for extracurricular activities, and taxation information. Separation agreements may also include provisions related to a child’s education expenses and involvement in college applications or financial aid. The agreement may also include provisions related to the health, dental, and vision insurance for children.

Separation agreements may also include alimony provisions, such as the amounts, tax effect, and possible future modification of alimony. Provisions related to the former spouse’s health, dental, vision, and life insurance may be included. Also, provisions related to the marital home may be included. This encompasses joint ownership provisions, homeowner’s insurance provisions, maintenance provisions, and more. If the parties possess other shared income, the parties should include provisions related to that additional property as well. This may include pension and retirement, securities, bank accounts, and family business provisions. Separation agreements may also include provisions related to taxes, debt, liabilities, and the procedure for any future disputes.

After the separation agreement is written, the agreement is presented to a Massachusetts judge.[2] After a hearing about the merits of the separation agreement, the judge may decide to accept the separation agreement.[3] The judge may decide that a separation agreement is sufficient if the separation agreement contains provisions for custody, support and maintenance, for alimony and the disposition of marital property, and for what is in the best interests of any children, if applicable.[4] This is a broad standard, and each drafted separation agreement must be specific to the parties because every family has unique challenges and responsibilities.

Separation agreements must also be “fair and reasonable.”[5] Some of the many factors that establish whether a separation agreement is reasonable include the following: the consideration of financial provisions as a whole; the context of how the negotiation of the agreement occurred; the background and knowledge of the parties; and the agreement in the context of the statutory factors for property division and spousal support.[6]

If you are seeking answers to your questions about separation agreements or general family issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

 

[1] Mass. Gen. Laws ch. 208 § 34

[2] Mass Gen. Laws ch. 208 § 1A

[3] Id,

[4] Id.

[5] Dominick v. Dominick, 18 Mass.App.Ct. 85 (1984)

[6] Id.

Prenuptial Agreement Requires Meaningful Choice in Giving up Rights During the Marriage

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

  • in writing and signed by the parties;
  • signed voluntarily and under no signs of duress or fraud;
  • made after full disclosure of the parties’ assets;
  • the prenuptial 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 ground for contesting a prenuptial agreement is on the basis of an invalid waiver of marital rights, such as the right to alimony or property. In essence, this means that each party must have the ability to exercise a meaningful choice in giving up his or her rights under the marriage. Each party must understand what rights they are giving up, and each party must exercise his or her choice to do so.

In an important recent case, Eyster v. Pechenik, the court invalidated a one-page prenuptial agreement, drafted by the husband and signed by the parties, in which the parties waived their right to the property of the other spouse. Eyster v. Pechenik, 71 Mass. App. Ct. 773 (2008). The agreement made no mention of alimony or support. The court invalidated the agreement, holding that no meaningful waiver was present. In doing this, the Court also contrasted the facts of the case from the seminal case of  DeMatteo v. DeMatteo, 436 Mass. 18 (2002). The court stated:

“In DeMatteo, the waiver was clear and comprehensive… In the present case, the agreement contained no waiver of the wife’s rights. In DeMatteo, both parties were also represented by independent counsel…Here, neither side consulted a lawyer. The significance of the legal advice in DeMatteo was noted repeatedly by the court.…Also unclear is the parties’ understanding of the terms of the agreement and their effect, and the parties’ understanding of their rights in the absence of the agreement. See DeMatteo, 436 Mass. at 29, 762 N.E.2d 797. This was not “the case of [an] agreement[ ] concluded without the assistance of independent legal counsel for each party, [in which] the agreement states, in language easily understandable by an adult of ordinary intelligence with no legal training, … the nature of any rights or claims otherwise arising at dissolution that are altered by the contract, and the nature of that alteration.” ALI Principles § 7.04(3)(c). Rather, the agreement contains no discussion of marital rights nor how such rights are altered. Furthermore, the provisions of the agreement are sketchy. Assets acquired after marriage other than gifts or inheritances are not clearly addressed or resolved by the one-page agreement, particularly when the document is read from a lay person’s perspective.” Eyster, at 784-785.

One infamous recent case involved the widow of the late John Belushi, who remarried and moved to Martha’s Vineyard. Pisano v. Pisano, 87 Mass. App. Ct. 403 (2015). Prior to her second marriage, she and her husband executed a prenuptial agreement in which they waived their rights to the other spouse’s property in the event of a divorce. Although the agreement referenced alimony, it did not include a specific waiver as to the alimony clause. The husband claimed that the agreement was invalid and that he did not specifically waive his rights to alimony, as “the agreement contains no waiver of the parties’ rights to alimony upon divorce, that the waiver of the parties’ claim to the other’s separate property does not constitute a waiver of the parties’ alimony right on income from the separate property, that the judge failed adequately to distinguish between a waiver of a property interest and a waiver of alimony (which constitute two separate and distinct rights), and that the ruling resulted in effect as an unknowing and involuntary implied waiver of his alimony rights under G.L. c. 208, § 34, contrary to established law and the public policy of the Commonwealth[.]” Pisano, at 411.

The court disagreed with the husband, holding that the overall waiver of rights in this case was sufficient to waive alimony. “While the premarital agreement, as the husband states and as the judge noted, does not contain a waiver of alimony per se, against the backdrop of the parties’ intent to protect their separate property (including income streams), and the above discussed language of paragraph 7 as it pertains to awards of alimony, we think the judge reasonably and properly construed the agreement to limit the husband’s claim for alimony in the manner we have previously described. We also agree with the judge that the modification of rights under G.L. c. 208, § 34, does not, in the circumstances, act as an “unknowing waiver” of the husband’s alimony rights.” Pisano, at 414.

In another unpublished case, Roof v. Abelowicz, the parties entered into a prenuptial agreement: the husband wanted to preserve his estate for his minor children from a previous marriage, while the wife wanted to retain her interests in real estate. Roof v. Abelowicz, 91 Mass. App. Ct. 1112 (2017). At the time, the parties’ assets were roughly equal, but by the parties’ divorce, the husband’s assets had significantly appreciated. The wife sought to invalidate the agreement and claimed that she was not fully aware of her rights at the time of signing. The court disagreed and held that the agreement was valid. “In this case, the terms of the agreement provide guidance as to the parties’ understanding. The tenth clause of the agreement contains an explicit waiver provision, providing that each party entered into the agreement with advice of counsel of their own choosing. Additionally, both the wife and the husband had been previously married and divorced, and, therefore, had previous experience with their rights under the law,” the court noted, also bringing up an email by the wife in which the wife clearly stated that she understood what she was contracting to. Roof, at 2.

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Prenuptial Agreements and Fairness

In Massachusetts family law in general, the importance of equity and fairness is of utmost concern. The court, when reviewing prenuptial agreements, will seek to ensure that the agreement is fair and reasonable and that its enforcement does not go against countervailing equities.

The Agreement Must Be Fair and Reasonable at the Time of Signing

In one case, the court chose to invalidate the agreement in part due to its lack of fairness. Schechter v. Schechter, 88 Mass. App. Ct. 239 (2015). The court stated, quoting the trial judge:

“[the father] had over $7.5 [m]illion in equity when the agreement was signed and [the mother] had $2[,]500.00 in equity. The provision for [the mother] to receive, upon a divorce, a lump s[um] payment of alimony at the rate [of] $5,000.00 for each full year of marriage is well below fair. When her lawyer tried to negotiate it up a little, [the father] said no. He negotiated himself out of a fair agreement. The property division agreement is also unfair when viewed from the date of signing. The agreement gives the wife one-half of the increase in the equity, if any, in the marital home from the date of the agreement less mortgages and encumbrances. If the parties lived in a rental home or an apartment the wife would receive no assets. If the equity in the home did not go up, the wife would receive no assets. If the husband chose to encumber the home to the maximum extent possible, the wife would receive no assets.” Schechter, at 259.

Of particular importance to this issue is the 2009 case of DeMatteo v. DeMatteo, in which the Supreme Judicial Court enforced an antenuptial agreement which had been contested by the wife during the divorce. DeMatteo v. DeMatteo, 436 Mass. 18 (2002). In that case, the husband (whose net worth was between $108-$133 million) presented the wife with an antenuptial agreement, providing full written disclosure of his assets, including tax returns. Both parties retained counsel, and negotiations followed.

The agreement, drafted by the husband’s attorney, provided that in the event of a divorce, the wife would receive the marital home free of encumbrance, the automobile that she was then driving, and an annual payment from the husband of $25,000 until her death or remarriage. The wife initially rejected the agreement and asked for the husband to increase the annual payments to the wife to $35,000, adjusted annually for increases in the cost of living. She also asked for medical insurance, life insurance, and the lesser of twenty per cent of the husband’s estate or $5 million. Upon further negotiations, the wife dropped that last demand, but the annual payments were increased to $35,000 and medical insurance was also provided for the wife in the final antenuptial agreement.

The high court in DeMatteo spent particular effort on discussing the requirement of “fair and reasonable” in antenuptial agreements. The court explained this requirement as follows:

To meet the requirement of “fair and reasonable,” at the time of execution an antenuptial agreement need not approximate an alimony award and property division ruling a judge would be required to make under G.L. c. 208, § 34. Judged by those statutory requirements, the parties’ right to settle their assets as they wish would be meaningless. The relinquishment of claims to the existing assets of a future spouse, even if those assets are substantial, also does not necessarily render an antenuptial agreement invalid. An antenuptial agreement may be most desired when a wealthy individual contemplating marriage seeks to ensure that, if the marriage is not successful, his or her own assets will not accrue to the spouse. Many valid agreements may be one sided, and a contesting party may have considerably fewer assets and enjoy a far different lifestyle after divorce than he or she may enjoy during the marriage. It is only where the contesting party is essentially stripped of substantially all marital interests that a judge may determine that an antenuptial agreement is not “fair and reasonable” and therefore not valid. DeMatteo, at 31.

The Agreement Must Also Be Fair and Reasonable at the Time of Divorce 

In addition to the validity of the agreement, the court will also consider whether the agreement is enforceable at the time of divorce.

The seminal recent case on this doctrine is DeMatteo v. DeMatteo, in which the trial court invalidated an antenuptial agreement signed by the parties. The Supreme Judicial Court ultimately reversed, holding that the agreement was both valid at the time of execution and enforceable at the time of the divorce. In a very important paragraph regarding antenuptial agreements and their enforcement, the high court also clarified the meaning and application of the Second Look Doctrine in Massachusetts as follows:

“In Massachusetts, a valid antenuptial agreement is not unenforceable at the time of divorce merely because its enforcement results in property division or an award of support that a judge might not order under G.L. c. 208, § 34, or because it is one sided. Moreover, it is not appropriate for a judge to use the same test of enforceability of an antenuptial agreement as she would for the enforceability of a separation agreement, for the reasons explained earlier. Rather, we follow the majority of courts and require that a judge may not relieve the parties from the provisions of a valid agreement unless, due to circumstances occurring during the course of the marriage, enforcement of the agreement would leave the contesting spouse “without sufficient property, maintenance, or appropriate employment to support” herself. ..Such circumstances might include, for example, the unanticipated mental or physical deterioration of the contesting party (here the antenuptial agreement provided for full health insurance for the wife), or the erosion by inflation of agreed-on support payments to such a degree as to nullify the obvious intention of the parties at the time of the agreement’s execution (here the support payments agreed to by the parties contained an adjustment for cost of living, which the wife does not claim is inadequate). The “second look” at an agreement is to ensure that the agreement has the same vitality at the time of the divorce that the parties intended at the time of its execution.” DeMatteo, at 36-37.

In a subsequent case, however, the appeals court upheld a trial court’s invalidation of the antenuptial agreement based on the Second Look Doctrine, as enforcing the agreement would have left the wife with negative equity in the marital home. Kelcourse v. Kelcourse, 87 Mass.App.Ct. 33 (2015). In that case, the husband had considerable assets, including a commercial marina, while the wife had no appreciable assets at the time of signing. The agreement provided for each party to retain his or her assets, and it provided for the wife to take the marital home in the case of a divorce. During the marriage, the parties bought a fixer-upper home together, which they inhabited as their principal residence, and which the husband intended to renovate. By the time of the divorce, the property had further deteriorated, and the husband had moved out.

The court noted, quoting DeMatteo:

“A “second look” at the agreement during divorce proceedings ensures that it “has the same vitality at the time of the divorce that the parties intended at the time of [the agreement’s] execution.” … A prenuptial agreement will not be enforced if enforcement, “due to circumstances occurring during the course of the marriage, … would leave the contesting spouse ‘without sufficient property, maintenance, or appropriate employment to support’ herself.” Ibid., quoting from 1 H.H. Clark, Jr., Domestic Relations in the United States § 1.9 (2d ed. 1987). The Probate and Family Court judge found that the prenuptial agreement was valid when entered into by the parties, but upon taking a second look, the judge found that it could not be enforced. She determined that the purchase of the principal residence and its subsequent neglect constituted a change in circumstance beyond what the parties contemplated when they executed the agreement, and that enforcement of the agreement would be unconscionable.” Kelcourse, at 35.

If you have any questions regarding prenuptial agreements or family law in general, our experienced family law attorneys are here to help. Schedule a free consultation with our firm, or call our offices at any time.