Divorce Mediation Blog

Recipe for Premarital Agreement Failure, Redux - Allen v. Allen

Wednesday, September 28, 2016

After 2001’s DeMatteo v. DeMatteo, we wondered just what one would have to do, in the real world, to cause a premarital agreement to be struck down as invalid or unenforceable, short of a literal or figurative “gun to the head”, or blanket waivers of everything.

In 2014, we commented here on Kelcourse v. Kelcourse, noting that a husband who sought to enforce a prenup had materially violated the agreement, and generally acted in a matter so unseemly during the marriage itself, that he undermined the very deal that he was seeking to enforce. There was also a vermin factor, but you may go back and read that entry if you are sufficiently curious!

Now, in last month’s Allen v. Allen, a Rule 1:28 decision of the Massachusetts Appeals Court, we have clear primer on how not to conclude a premarital agreement, if you ever want to enforce it. Without further ado, here are the Allen Rules:

  1. Marry someone whose primary language is Portuguese, of which you speak none.
  2. Use hand signals with each other.
  3. Have your non-Portuguese speaking lawyer “explain the agreement” to your intended (assisted by your hand signals).
  4. Arrange for a Portuguese speaking personal injury and real estate lawyer to meet with your fiancée 4 days before the marriage, to orally translate the agreement into Portuguese and give no legal advice (perhaps she didn’t want any; or maybe it was because he had no involvement in divorce practice).
    Make sure that the agreement waives all property and support rights, except to keep the assets that she had before the marriage, disclosed on the agreement as “none”.
  5. Stay married for 15 years and then demand specific enforcement of the agreement which gives her nothing.
  6. Oh, and don’t forget to ask the Appeals Court to bar your wife from presenting oral argument.

Hope you practitioners are taking notes!

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