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A guy on the water and a wife in the soup… MEANS A FAILED PRENUPTIAL AGREEMENT (AND EVEN WHEN THEY’RE NOT ABOUT ALIMONY THEY’RE STILL ABOUT ALIMONY) Kelcourse v. Kelcourse – Part 1

Wednesday, February 04, 2015

The recent Massachusetts Appeals Court case of Kelcourse v. Kelcourse is significant for upholding a Probate and Family Court’s determination that a prenuptial agreement was unenforceable when it would have left the wife without sufficient property, alimony or other means of self-support. It begins to shape the “second look” factually, 33 years after the Supreme Judicial Court’s Osborne v. Osborne mandated that a prenuptial agreement be fair and reasonable at the time of divorce, and 13 years past DeMatteo v. DeMatteo’s conscionability test.

We suspect that the facts made this an easy decision for the trial judge. It had all the earmarks of behavior that would drive her to want to find against the husband. As always, we can only rely on the facts as selected and presented by the appellate court, but the published reasons that would likely have pushed any judge over the edge, included:

-- a last minute agreement (four days before marriage);

-- a broken promise (to buy a home shortly after the start of marriage, with the wife finding herself in the same rental unit 15 years later);

-- a slick maneuver (the husband removing himself to a $1.7 million “marina residence”;

-- mice! (the husband leaving the wife behind in the offending rental unit that the parties had subsequently purchased at fire sale, that had equity, at the time of divorce, according to the judge of minus $66,000 (the husband protested that it had +$62,000 of equity!), with $300,000 of required repairs, and yes, vermin;

-- a wife who earned $300.00 per week; and

-- a husband who apparently made a whole lot more, given the alimony award, such as it was.

The “feel” and the facts say that the judge and the Appeals Court got it right, at least in not reinstating the terms of the offending agreement. The trial judge could have easily justified giving the wife more, perhaps considerably more, since M.G.L., chapter 208, section 34 equitable division was now in play, with the prenup gone. It appears, though, that the wife did not seek more at the appellate level, but was merely defending what she had received from the trial judge, so the Appeals Court correctly hewed to the issues before it.

In the opinion, alimony was a bit player. Yet, even here, where alimony was not a central appellate issue, there is still an “alimony reform” angle. We will explore that in our next entry.



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