Unconscionability of prenup on ‘second look’ upheld

BOSTON, MA — A Probate & Family Court judge did not err in finding that a prenuptial agreement was fair and reasonable when it was signed but unconscionable and therefore unenforceable at the time of the parties’ divorce, the Appeals Court has ruled.

After a judge found the agreement unenforceable at the time of the divorce and entered partial judgement invalidating it, a second Probate & Family Court judge entered a divorce judgment that divided the marital estate of plaintiff Doris Rudnick and defendant Leonard Rudnick.

Writing for a three-judge panel of the Appeals Court, Judge Robert A. Brennan noted that, under the Supreme Judicial Court’s 2002 decision in DeMatteo v. DeMatteo, a prenuptial agreement “must be both (1) fair and reasonable at the time of execution (the ‘first look’), and (2) conscionable at the time of enforcement (the ‘second look’)” to be enforceable.

“Here, the judge on the second look found that the agreement was unconscionable, and thus unenforceable, because it stripped the wife of all marital interests and left her with insufficient financial resources to support herself,” Brennan wrote.

The judge’s second-look analysis included findings that the husband had breached the agreement in failing to take title to two properties as a tenant in common with his wife, in one instance carrying out a “naked breach” of the agreement by taking title to a Florida property in his individual name.

The Appeals Court panel rejected the husband’s contention that the judge’s findings were clearly erroneous.

“It is apparent, upon reading the agreement as a whole, that the parties intended to live together in a ‘jointly acquired marital residence’ in which the wife would have a property interest,” Brennan wrote. “As a result of the husband’s actions during the marriage, however, the wife was left with no marital property interests, and no right to seek alimony.”

“Notably, the wife waived her right to alimony with the understanding that she would be entitled to the appreciation of the value of any real property acquired during the marriage … . However, the manner in which the husband took title to those properties placed them out of the wife’s reach and thus prevented her from ‘retaining her marital rights.'” he wrote, quoting from the SJC’s decision in DeMatteo.

The 11-page decision is Rudnick v. Rudnick.

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