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.
Eyster v. Pechenik:
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.”
Additionally, “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.
Pisano v. Pisano:
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.
Roof v. Abelowicz:
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, however, holding 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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