MASSACHUSETTS DIVORCE: HOW LONG DOES IT TAKE?

by Marion Lee Wasserman

Question: How long does it take to get divorced in Massachusetts? Answer: It depends. Some couples decide to get divorced and then take years to complete the process. Other couples want to move things along as quickly as possible. Often, one spouse is in a hurry, while the other spouse wants to slow down the process. There is no single timeframe that fits every couple, and patience truly is a virtue in this process. The fairest and wisest settlement for both parties and their children may not be the one they would have reached straight out of the gate.

All the same, let us imagine a couple in agreement on pursuing the quickest possible Massachusetts divorce.

    Uncontested Massachusetts Divorce (1A Divorce)

Our hypothetical couple could work with a mediator, or could use lawyer-to-lawyer negotiation, to voluntarily reach a written Separation Agreement to be filed with the Probate and Family Court as joint petitioners. In the least complicated, most cooperative situations, it would make sense to allow at least three months from the first meeting to the Agreement signing, given the practical realities of scheduling meetings, collecting information and reviewing Agreement drafts. Three months is an aggressive time-frame for this phase of the process, but it is feasible for the right couple. In general, the more complicated the financial situation and the more heated the conflict between the parties, the longer it will take to work out an Agreement. Also, if there are children, especially if there are minor children, even in the absence of significant parental dispute, time will be needed to work out child-related issues.

Once the parties’ Agreement and Joint Petition for Divorce are filed with the Court, the parties will receive a hearing date. There may be a lag of a few weeks between the filing date and hearing date. The lag may be longer at times, depending on the Court backlog. If the Separation Agreement is approved by the judge at the hearing, a Judgment of Divorce Nisi (temporary judgment of divorce) will be entered thirty days later. That Judgment will then become absolute (final) within ninety more days.

So, from filing to hearing, the process will most likely take a few weeks, and from hearing to final judgment, assuming the Agreement is approved at the hearing, the process will take four months. This means that the entire uncontested process, including the negotiation of the Agreement, is likely to take from seven to eight months, at a minimum. The last four months of the process are simply a waiting period. The uncontested, Joint Petition process, is governed by M.G.L. Chapter 208, Section 1A and is often referred to as a “1A divorce.”

    Contested Massachusetts Divorce (1B Divorce)

If, instead of filing a Joint Petition, one of the parties files a Complaint for Divorce, thus commencing a contested, rather than an uncontested, divorce proceeding (a so-called “1B divorce” under M.G.L. Chapter 208, Section 1B), the parties must wait at least six months from the filing date in order to have a divorce hearing at which a Judgment of Divorce Nisi may be issued. That Judgment will then become absolute (final) within ninety more days. If the parties to a contested proceeding are fortunate enough to settle their case before six months have elapsed, they may submit a motion to the court asking for the matter to be converted to an uncontested, joint petition proceeding, so that the hearing date can be set without waiting out the six-month period. In reality, parties to a contested divorce proceeding often require more than six months prior to the hearing date, because during that time they are working to negotiate a voluntary settlement, often with various court-required steps along the way, as, for example, a status conference with the judge or a pre-trial conference; and, if no settlement is reached, the judge will set a trial date, which may require a wait of several more months, during which time the lawyers and parties will prepare for trial. In Massachusetts, the Probate and Family Court official time-standard for contested divorces is fourteen months (under Standing Order 1-06) — that is, the divorce process, from filing to entry of a judgment, should take no more than fourteen months. Nonetheless, depending on the court backlog and the parties’ particular needs, the process may take longer.

Copyright © 2017 Marion Lee Wasserman. All rights reserved.

ALIMONY DURATION UNDER THE MASSACHUSETTS ALIMONY REFORM ACT

by Marion Lee Wasserman

STATUTORY FORMULA: Under the Massachusetts statute governing alimony (the Alimony Reform Act of 2011) so-called “general term alimony” awards shall be set for a period of time consistent with a formula specified in the statute. This formula links the duration of alimony to the length of the marriage. For marriages of twenty years or less, the court must not exceed the duration determined by the statutory formula “except upon a written finding that deviation is required in the interests of justice.” For marriages longer than twenty years, the court may order general term alimony for an indefinite length of time.

Here is the statutory formula for determining duration in marriages of twenty years or less: (1) If the length of the marriage is 5 years or less, general term alimony shall continue for not longer than one-half the number of months of the marriage.
(2) If the length of the marriage is 10 years or less, but more than 5 years, general term alimony shall continue for not longer than 60 per cent of the number of months of the marriage.
(3) If the length of the marriage is 15 years or less, but more than 10 years, general term alimony shall continue for not longer than 70 per cent of the number of months of the marriage.
(4) If the length of the marriage is 20 years or less, but more than 15 years, general term alimony shall continue for not longer than 80 per cent of the number of months of the marriage.

PRESUMPTION RELATED TO FULL RETIREMENT AGE: Notwithstanding the above formula, there is a presumption that general term alimony terminates upon the payor attaining full retirement age — i.e., the payor’s normal retirement age to be eligible to receive full retirement benefits under Social Security. The Act says that alimony “shall terminate” at full retirement age and that the “payor’s ability to work beyond the full retirement age shall not be a reason to extend alimony ….”

The court may, however, deviate from the presumption of termination at full retirement age, as follows: “When the court enters an initial alimony judgment, the court may set a different alimony termination date for good cause shown.” Also, if a recipient of general term alimony asks the court to extend the alimony award beyond the payor’s full retirement age, the court may grant an extension for good cause shown, provided that a material change of circumstance occurred after the original order was entered and provided that reasons for the extension are “supported by clear and convincing evidence.”

WHAT IS MEANT BY GENERAL TERM ALIMONY? Under the Act, this is alimony paid to an economically dependent spouse and is distinguished from three special, limited alimony categories: rehabilitative alimony, reimbursement alimony and transitional alimony (discussed in a separate Reach Accord blog post).

REMARRIAGE; DEATH; COHABITATION: Under the Act, all general term alimony awards terminate upon the remarriage of the recipient or the death of either spouse. Also, general term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient when the payor shows that the recipient has maintained a “common household” (as defined in the statute) for a continuous period of at least three months.

SEPARATION AGREEMENTS: For parties negotiating a voluntary Separation Agreement to be submitted to the court for incorporation into a divorce judgment, it is critical that the terms of the Act be taken into consideration, and any variation from the terms of the Act should be clearly indicated in the Separation Agreement.

Copyright © 2016 Marion Lee Wasserman. All rights reserved.

The above article is provided for general informational purposes. This article is based on Massachusetts law and applies to Massachusetts only. Furthermore, it is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal advice or legal opinion or as tax advice or as establishing an attorney-client relationship.

MASSACHUSETTS PROBATE AND FAMILY COURT CHANGES WORDING OF FORMS: “PARENTING TIME” REPLACES “VISITATION”

by Marion Lee Wasserman

The Massachusetts Probate and Family Court has replaced the term “visitation” with the words “parenting time” in various custody-related court forms and on the self-help portion of the Massachusetts Probate and Family Court website. In doing this, the Court recognizes that words matter to families. The change of wording went into effect on July 15, 2015. Informing the legal community of this change, Chief Justice Angela Ordoñez observed that the term “parenting time” is already widely used in Massachusetts and that the national trend is towards keeping parents involved in their children’s lives.

Family lawyers and mediators know that words matter very much to parents. In working with divorcing or divorced parents or non-married parents trying to work out a family plan, I have long avoided the word “visitation.” The Massachusetts Probate and Family Court’s announcement is a welcome step forward.

Copyright © 2015  Marion Lee Wasserman.  All rights reserved.

The above article is provided for general informational purposes.  This article is based on Massachusetts law and applies to Massachusetts only.  Furthermore, it is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal advice or legal opinion or as tax advice or as establishing an attorney-client relationship.

ALIMONY IN MASSACHUSETTS: THREE SPECIAL-PURPOSE ALTERNATIVES TO GENERAL TERM ALIMONY

by Marion Lee Wasserman

The Alimony Reform Act of 2011 (codified under M.G.L. Chapter 208, Sections 48 – 55) established three types of special-purpose, limited-duration alimony in Massachusetts — “Rehabilitative Alimony,” Reimbursement Alimony,” and “Transitional Alimony” — in addition to “General Term Alimony.” General Term Alimony is alimony paid to an economically dependent spouse; and the Act sets out durational limits for General Term alimony that are linked to the length of the marriage.


In defining three special types of alimony, distinguished from General Term alimony, the Act is designed to formally recognize that a legitimate function of alimony in certain cases is to meet a specific, short-term need.

1. Rehabilitative Alimony: The purpose of Rehabilitative Alimony is to provide support for a limited period, in anticipation of the recipient spouse becoming economically self-sufficient. In the language of the statute, the recipient spouse “is expected to become economically self-sufficient by a predicted time, such as, without limitation, reemployment; completion of job training; or receipt of a sum due from the payor spouse under a judgment.” The payment period for this type of alimony would not exceed five years (except that the alimony term could be extended on a complaint for modification under certain “compelling circumstances”).

2. Reimbursement Alimony: The purpose of Reimbursement Alimony is to compensate the recipient spouse for “economic or noneconomic contribution to the financial resources of the payor spouse, such as enabling the payor spouse to complete an education or job training.” This type of alimony would apply only to marriages of not more than five years; would be paid either periodically or in a one-time payment; and would be non-modifiable. Income guidelines applicable to other types of alimony under the proposed statute would not apply to Reimbursement Alimony.

3. Transitional Alimony: The purpose of Transitional Alimony is the “transitioning” of the recipient spouse “to an adjusted lifestyle or location as a result of the divorce.” This type of alimony would apply only to marriages of not more than five years; would be paid either periodically or in a one-time payment; would not continue for more than three years from the date of the parties’ divorce; and would be non-modifiable.

Copyright © 2015 Marion Lee Wasserman. All rights reserved.

The above article is provided for general informational purposes. This article is based on Massachusetts law and applies to Massachusetts only. Furthermore, it is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal advice or legal opinion or as tax advice or as establishing an attorney-client relationship.

NAME CHANGE IN MASSACHUSETTS DIVORCE

by Marion Lee Wasserman

TIMING:
A party to a divorce in Massachusetts has an opportunity to change his or name in connection with the divorce proceeding.

A divorcing individual who knows, at the time of the divorce, that he or she would like to have a Court’s formal approval of a name change can avoid a separate legal proceeding and an additional court fee by taking this step in connection with the divorce process. A divorcing individual who is not ready to make this decision at the time of the divorce may, at the individual’s discretion, initiate a court proceeding for a name change later on — perhaps at a time of less stress and indecision.

I was recently asked if a divorcing individual could begin using a former name prior to the divorce judgment becoming final. In this instance, the Court had approved the name change at a hearing on a Joint Petition, and the Findings and Order issued by the Court had indicated this approval, to become effective as of the entry of the judgment. The Judgment of Divorce Nisi (temporary judgment) would enter thirty days from the date of the hearing and the Findings and Order; and the Judgment of Divorce would become final ninety days from the date of the temporary judgment. The question being asked was whether the party changing her name could begin using her “new” name during the waiting period. The answer is yes … and here’s why ….

COMMON LAW RIGHT:
Under common law in Massachusetts, any individual is free to change his or her name at any time, so long as the individual is using the name change for honest purposes. A name change does not require court approval, although court approval is generally advisable, in order to establish a formal, legal record of the change.

In a 1977 case, Secretary of the Commonwealth v. City Clerk of Lowell, the Supreme Judicial Court of Massachusetts, reviewing the common law on this subject and quoting from an earlier case, said, “It is well settled that at common law a person may change his name at will, without resort to legal proceedings, by merely adopting another name, provided that this is done for an honest purpose” (fn.1).

CHOICE OF NAME:
The Joint Petition form filed in connection with an uncontested divorce in Massachusetts asks if either of the petitioners wishes to resume a former name. The Complaint for Divorce filed in connection with a contested divorce in Massachusetts asks if the plaintiff wishes to resume a former name. Although the wording of these forms refers to a “former name,” a party wishing to assume a new name not previously used by him or her may do so.

The Supreme Judicial Court, in the Lowell case, commented specifically on name changes in connection with divorce and noted, “… on divorce from Richard Roe, with or without a court order as to her name, Jane Roe may retain that name or resume the name Jane Doe as her maiden name or the name of a previous husband or she may assume a new name” (fn.2). The Court went on to say that the Massachusetts statute allowing a woman to resume her maiden name or that of a former husband (Massachusetts General Laws ch. 208, Sec. 23) “does not restrict her choice but aids her to secure an official record that definitely and specifically establishes her change of name” (fn. 3). The choice of name is up to the party, and the wording of the court forms does not prevent a divorcing party from requesting the Court’s approval of a new name that is not a former name. It is also worth noting that the court forms are gender neutral, unlike the outdated wording of M.G.L. ch. 208, Sec 23.

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1. Secretary of the Commonwealth v. City Clerk of Lowell, 373 Mass. 178 (1977).

2. City Clerk of Lowell, pg. 188.

3. City Clerk of Lowell, pg. 188.

Copyright © 2014 Marion Lee Wasserman. All rights reserved.

The above article is provided for general informational purposes. It is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal advice or legal opinion or as tax advice or as establishing an attorney-client relationship.

SAME-SEX MARRIAGE IN MASSACHUSETTS: FEDERAL BENEFITS APPLY AFTER SUPREME COURT RULING ON DOMA

by Marion Lee Wasserman

On June 26, 2013, the United States Supreme Court, in United States v. Windsor (fn.1), affirmed the judgment of the United States Court of Appeals for the Second Circuit, concluding that Section 3 of the federal Defense of Marriage Act, commonly known as DOMA, is unconstitutional.

Section 3 of DOMA, since its passage in 1996 (at a time when no state permitted same-sex marriage) had the effect of placing all federal marriage-related benefits outside the reach of same-sex couples, regardless of whether state law evolved to permit them to marry. Section 3 defined the word “marriage,” for purposes of federal law and regulation, as meaning “only a legal union between one man and one woman as husband and wife” and defined the word “spouse” as referring “only to a person of the opposite sex who is a husband or a wife.” Prior to the ruling in United States v. Windsor, married same-sex couples in Massachusetts were treated as unmarried under federal law, although they had been able to receive the same state benefits as married heterosexual couples since the 2003 ruling of the Massachusetts Supreme Judicial Court in the Goodridge case (fn.2).

In finding Section 3 of DOMA unconstitutional, the majority opinion in United States v. Windsor observes: “DOMA writes inequality into the entire United States Code. The particular case at hand concerns the estate tax, but DOMA is more than a simple determination of what should or should not be allowed as an estate tax refund. Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits.” (fn.3)

In United States v. Windsor, the Supreme Court concluded that there is no legitimate purpose justifying DOMA’s disparagement of and injury to “those whom the State, by its marriage laws, sought to protect in personhood and dignity.” (fn.4)

The result in United States v. Windsor is cause for celebration for married same-sex couples in Massachusetts.

There is, however, a limit on how far the Supreme Court was willing to go in this opinion. The Court noted that “This opinion and its holding are confined to those lawful marriages” — that is, those marriages recognized under state law (fn.5). Same-sex couples living in a state that does not recognize their right to marry remain deprived of marriage-related federal benefits and state benefits. And same-sex couples married in Massachusetts, New York, or one of the ten other states permitting them to marry (or married in the District of Columbia, where same-sex marriages are also permitted) will unfortunately still find themselves in uncertain legal territory if they move to or visit a state that does not recognize their marital status.

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1. United States, Petitioner, v. Edith Schlain Windsor, slip opinion 12-307, June 26, 2013, 570 U.S. _____ 2013.

2. Hillary Goodridge v. Department of Public Health, 440 Mass. 309 (2003).

3. United States v. Windsor, slip opinion 12-307, pg. 22.

4. Slip opinion 12-307, pp. 25-26.

5. Slip opinion 12-307, pg. 26.

Copyright © 2013 Marion Lee Wasserman. All rights reserved.

The above article is provided for general informational purposes. It is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal advice or legal opinion or as tax advice or as establishing an attorney-client relationship.

NEW MASSACHUSETTS CHILD SUPPORT GUIDELINES

by Marion Lee Wasserman

New Massachusetts Child Support Guidelines will take effect on August 1, 2013.

On June 20, the Supreme Judicial Court of Massachusetts issued a press release on the new Massachusetts Child Support Guidelines, indicating that the “most significant” clarifications and changes brought about by the new Guidelines include:

• “Income from means tested benefits such as SSI, TAFDC, and SNAP are excluded for both parties from the calculation of their support obligations.

• Availability of employment at the attributed income level must be considered in attribution of income cases.

• The text makes clear that all, some, or none of income from secondary jobs or overtime may be considered by the court, regardless of whether this is new income or was historically earned prior to dissolution of the relationship.

• Reference is made to the 2011 Alimony Reform Act; the text does not, however, provide a specific formula or approach for calculating alimony and child support in cases where both may be appropriate.

• Clarification is given as to how child support should be allocated between the parents where their combined income exceeds $250,000.

• A new formula is provided for calculating support where parenting time and expenditures are less than equal (50/50) but more than the assumed standard split of two thirds/one third.

• Guidance and clarification is given in the area of child support over the age of eighteen where appropriate. While the Guidelines apply, the court may consider a child’s living arrangements and post- secondary education. Contribution to post-secondary education may be ordered after consideration of several factors set forth in the Guidelines and such contribution must be considered in setting the weekly support order, if any.

• The standard for modification is clarified to reflect the recent Supreme Judicial Court decision in Morales v. Morales, 464 Mass. 507 (2013).

• Circumstances justifying a deviation are expanded to include extraordinary health insurance expenses, child care costs that are disproportionate to income or when a parent is providing less than one-third parenting time.”

The new Massachusetts Child Support Guidelines Worksheet is available on the website of the Massachusetts Probate and Family Court. Click here for the Worksheet: Massachusetts Child Support Guidelines Worksheet, effective August 1, 2013.

The press release quoted above states that the issuance of the new Massachusetts Child Support Guidelines was announced on June 20 by Robert A. Mulligan, Chief Justice of the Massachusetts Trial Court.

MASSACHUSETTS CHILD SUPPORT MODIFICATIONS: RECENT POST-DIVORCE CASE CLARIFIES STANDARD

by Marion Lee Wasserman

According to a March 2013 opinion of the Massachusetts Supreme Judicial Court, a post-divorce child support modification does not require a finding of a material change of circumstances. Rather, if there is an inconsistency between the amount of the existing order and the amount that would result from application of the Massachusetts Child Support Guidelines, the Court must consider the modification request. When such an inconsistency exists, the Court may not simply dismiss the complaint for modification, even if the evidence does not demonstrate a material change of circumstances.

In the post-divorce modification case of Morales v. Morales (fn.1), the Supreme Judicial Court cited the language of M.G.L. Chapter 208, Section 28 (fn. 2) as establishing the relevant “inconsistency” standard — a standard prevailing over contradictory language in the modification provisions of the Massachusetts Child Support Guidelines. The Court said, “… the 2009 Guidelines are themselves not consistent with the inconsistency standard set out in Section 28, at least with respect to modification requests filed less than three years after the date of the original child support order.” (fn.3) In deciding the Morales case as it did, the Supreme Judicial Court took issue with the contrary result reached by the lower court, the Probate and Family Court, and upheld by the Appeals Court. The Probate and Family Court had applied a standard of “material and substantial change of circumstances,” rather than looking merely for inconsistency with the Child Support Guidelines. According to the Supreme Judicial Court, this was error on the part of the Probate and Family Court judge, and the dismissal of the modification complaint should not have been affirmed on appeal.

If, upon reading this article, you are surprised by the rejection of the “material change” standard, bear in mind that you are not alone, as the Probate and Family Court judge evidently thought a “material and substantial change of circumstances” was the correct standard, and the Appeals Court judge thought so, too. The Morales case offers a lesson in statutory interpretation and an important clarification of the Massachusetts child support modification standard.

The Supreme Judicial Court remanded the Morales case to the Probate and Family Court to permit consideration of the mother’s modification request under the “inconsistency standard.” This remand did not make a child support modification mandatory in this case; but it did require that the modification request be at least considered. The Court points out in Morales that under M.G.L. Chapter 119A Section 13(c), there is a rebuttable presumption that the amount of the order which would result from application of the Massachusetts Child Support Guidelines is the appropriate amount of child support. (fn. 4) In other words, the Guidelines calculation must be performed, and the party objecting to the result will have the burden of proving that a different amount should be ordered.

1. Morales v. Morales, March 12, 2013, SJC- 11104 slip opinion.

2. The Court cites “the standard set forth in G.L. Chapter 208, § 28, as amended through St. 1998, c. 64, §§ 194,195 (§ 28), which provides that a child support order shall be modified ‘if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines.'”

3. Massachusetts Child Support Guidelines, III.A. is the portion of the Guidelines found by the Court to be problematic. Section III.A. states: ” A child support order may be modified if any of the following circumstances exist: 1) the existing order is at least three years old; or 2) health insurance previously available at reasonable cost is no longer available (or if available but not at reasonable cost); or 3) health insurance not previously available to a party at reasonable cost has become available; or 4) any other material change in circumstances has occurred.”

4. M.G.L. Chapter 119A, Section 13(c) reads, in its entirety, as follows: “In any proceeding to establish or modify an amount of child support, the child support guidelines promulgated by the chief justice for administration and management shall apply. There shall be a rebuttable presumption that the amount of the order which would result from the application of the guidelines is the appropriate amount of child support to be ordered. If, after taking into consideration the best interests of the child, the court determines that a party has overcome such presumption, the court shall make specific written findings indicating the amount of the order that would result from application of the guidelines, that the guidelines amount would be unjust or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines and that such departure is consistent with the best interests of the child.”

Copyright © 2013 Marion Lee Wasserman. All rights reserved.

The above article is provided for general informational purposes. It is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal advice or legal opinion or as tax advice or as establishing an attorney-client relationship.

JOINT CUSTODY FOR SAME-SEX PARENTS IN MASSACHUSETTS DIVORCE: TAKING A LOOK AT AN IMPORTANT FAMILY LAW CASE OF 2012

by Marion Lee Wasserman

In the case of Della Corte v. Ramirez (fn. 1), decided early in 2012 by the Massachusetts Appeals Court, the Court took up the question of whether a woman who conceived a baby by artificial insemination shortly before marrying her same-sex partner, and who gave birth to the baby during the marriage, could be required, in connection with a divorce, to share custody of the child with the former spouse and non-biological parent. The Appeals Court’s answer was a clear “yes.” The lower court, the Probate and Family Court, had provided for joint legal custody in the divorce judgment and had refused to modify the judgment upon a post-divorce request for modification. The Appeals Court upheld the judgment of the Probate and Family Court.

The Court’s reasoning in this case made it clear that the non-biological parent, who had not adopted the child, did not need to have adopted the child in order to have full parental rights. The Court examined the language of a statute in Massachusetts that says that a child born to a married woman as a result of artificial insemination with the consent of her husband shall be considered the legitimate child of the mother and the husband; and the Court went on to say that the Goodridge case (fn.2) — the 2003 case establishing same-sex marriage in Massachusetts — requires that the artificial insemination statute be applied to same-sex couples so as to treat them in the same manner as heterosexual couples. Relying on Goodridge, the Court applied a gender-neutral application of the terms “husband” and “wife.” Thus, both parties had parental rights under the artificial insemination statute, and joint legal custody was consistent with the applicable law as well as the facts of the case.

Caution is still advised, however, on the adoption issue. Second-parent adoption in same-sex marriages is still a wise step for couples to take. Parents might relocate in the future to a state with laws that would not recognize the rights of the non-biological parent in the absence of an adoption. Furthermore, the Court in Della Corte paid attention to a number of “salient facts” that supported joint legal custody, including the listing of both parents on the child’s birth certificate, the wording of the parties’ separation agreement and the history of child support payments by the non-biological parent.

1. Della Corte v. Ramirez, 81 Mass. App. Ct. 906 (2012)
2. Goodridge v. Department of Public Health, 440 Mass 309 (2003)

Copyright © 2013 Marion Lee Wasserman. All rights reserved.

The above article is provided for general informational purposes. It is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal advice or legal opinion or as tax advice or as establishing an attorney-client relationship.

PRENUPTIAL AGREEMENTS IN MASSACHUSETTS: KEY FACTORS AFFECTING ENFORCEABILITY

by Marion Lee Wasserman

    KEY FACTORS:

• The Agreement must be fair and reasonable at the time of its execution.

• The parties must be fully informed of each other’s worth (that is, the value of their respective estates) prior to execution of the Agreement.

• The Agreement must include a meaningful, informed waiver of rights by the parties.

• The Court must take a “second look” at the time of divorce. The standard is whether the agreement is “conscionable” at the time of the divorce.

    SOME ELEMENTS BEARING UPON THE ABOVE:

– Representation by counsel
– Adequacy of time to review the Agreement
– Understanding of the terms of the Agreement and their effect
– Understanding of rights in the absence of an agreement

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Copyright © 2013 Marion Lee Wasserman. All rights reserved.

The above summary is provided for general informational purposes. It is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal advice or legal opinion or as tax advice or as establishing an attorney-client relationship.