As divorce attorneys, we are always cognizant of cases in which family law issues intersect with other areas of the law, such as tort law. A recent case addressed an issue of legal malpractice that stemmed from a prenuptial agreement.
In the case Greenspun v. Boghosian, the plaintiff sued his attorney after his wife was authorized to buy him out of one-half of his property during the parties’ divorce. Essentially, this awarded to the wife a one-half interest in the former marital residence; this was despite the parties having a prenuptial agreement in place.
The parties drafted a Google doc in which they identified their premarital assets and debts and attempted to decide what the parties’ rights and obligations would be regarding any property. One provision stated that if one partner’s savings were used to purchase real estate with no mortgage, the other partner would accrue a 2.5% ownership interest in that property every year after the purchase while the parties were married, with a maximum ownership interest of 50%. The parties both hired counsel to draft a prenuptial agreement for them based on the Google doc.
The parties reviewed several drafts of the prenuptial agreement. However, the husband claimed that he relied on his attorney to ensure that the provision regarding real estate was included in the final version. In that final version, the provision regarding the annual accrual of 2.5% interest was indeed included. So was another, somewhat conflicting, provision. That second section stated that if the parties had minor children at the time of divorce, and a parent wished to remain with the child in the marital home, the parties would make every effort to determine what was in the best interest of the child and resolve any buyout equitably.
The parties married in 2008. Days later, the husband purchased a house for $1.4 million with his savings; he took title in his name alone. This house became the principal marital residence. The parties had a baby in 2009. In 2011, the wife filed for divorce and challenged the validity of the prenuptial agreement.
The Probate and Family Court judge held the agreement as valid. The judge applied the second section of the agreement, stating that the parties had a minor child and the wife wished to remain in the marital home with the child. Accordingly, the judge held that the wife could buy out the husband’s interest for $727,500.
In 2015, the husband filed a claim for legal malpractice. This was against the attorney who represented him in negotiating and drafting the prenuptial agreement. The husband claimed that if he had known that the wife could have entitlement to more than the 2.5% accrual rights, he would have purchased the marital home prior to the marriage, rather than days after. The defendant attorneys moved for summary judgment. A judge of the Superior Court granted that motion, stating that the plaintiff did not establish the issue of causation. In other words, he failed to prove that the attorney’s malpractice was the cause of his damages. This was because he did not provide expert testimony on that issue. The plaintiff appealed.
The Massachusetts Appeals Court vacated the trial judge’s judgement. It explained that there is no requirement for expert witnesses in legal malpractice cases. An expert is not supposed to testify to legal questions. The issue of causation is a legal issue, the Court noted. Thus, this makes expert testimony unnecessary and not allowed.
“Because they are legal questions, expert testimony not only is not required; it is not admissible…It accordingly was error to conclude…that the plaintiff had no reasonable expectation of proving an essential element of his case at trial by reason of the absence of expert evidence on the issue of causation,” the Court held. “If, as the plaintiff contends, the antenuptial agreement would have been determined valid if drafted in strict accordance with the equity accrual provisions of the Google doc, the nexus between its variance from the Google doc and the loss of equity suffered by the plaintiff under the buyout ordered by the probate judge is clear.”
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