Appeals Court Affirms Application of Second Look Doctrine

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The Appeals Court recently affirmed a Probate and Family Court judge’s decision — made pursuant to the “second look” doctrine — to award a wife $400,000 as a substitute for the principal residence that she was to receive according to the letter of the parties’ prenuptial agreement. Kelcourse v. Kelcourse, No. 13-P-1741 (decided Jan. 21, 2015), 2014 WL 7653645.

The parties signed a prenuptial agreement before they were married in 1991. The agreement provided that a principal residence, if purchased during the marriage, would be deemed the wife’s separate property post-divorce. The parties separated after twenty years of marriage, and the wife argued during the divorce proceedings that the prenuptial agreement should not be enforced because the principal residence had been seriously neglected — to the point that it was infested with rodents and in need of hundreds of thousands of dollars in repairs. The residence was also encumbered by a mortgage of $256,000 — which exceeded the home’s appraised value by approximately $66,000. Post-separation, the husband moved to a residence valued at $1.7 million, which was unencumbered by a mortgage.

In Massachusetts, “[a]n antenuptial agreement is enforceable if it was valid when executed, and is conscionable at the time of divorce.” Kelcourse at *2, citing DeMatteo v. DeMatteo, 436 Mass. 18, 26-38 (2002). “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.” Kelcourse at *2, citing DeMatteo, 436 Mass. at 37 (internal quotation omitted). “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.” Kelcourse at *2, citing DeMatteo, 436 Mass. at 37, quoting from 1 H.H. Clark, Jr., Domestic Relations in the United States § 1.9 (2d ed. 1987) (internal quotation omitted)..

The judge found that the prenuptial agreement was unconscionable, and accordingly, applied the factors enumerated in G.L. c. 208, § 34. The judge considered the wife’s occupation, opportunity for future income, age, and contribution to the marriage as a homemaker, as well as the needs of the couple’s dependent children. Ultimately, the Appeals Court found no error in the judge’s decision to award the wife $400,000 as a substitute for the parties’ dilapidated principal residence.

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