The Appeals Court recently ruled on several critical issues involving prenuptial agreements. In Pisano v. Pisano, the Appeals Court addressed the issues of involving a bifurcated trial, a prenuptial agreement, temporary alimony and family loans. The primary issues that resulted in heavily contested litigation all could have been prevented by inclusion of clear provisions in the Prenuptial Agreement. This is not a criticism of those who drafted the document. In many instances, the soon to be married couple are unwilling or unable to address these types of specifics. The Pisano case, however, demonstrates the importance of clear and thoughtful decision-making and precise use of language when drafting a Prenuptial Agreement.

1. The Appeals Court upheld the trial Judge’s determination that the Prenuptial Agreement excludes income derived from separate assets from consideration of alimony.

While the prenuptial agreement did not explicitly state “income from separate assets is excluded from the calculation of alimony” as clearly as it might have, the Appeals Court upheld this decision finding that the language of the prenup clearly intended to exclude income from separate assets from being divided. Had clearer language regarding the inclusion of income from separate assets for alimony calculation been included, an expensive appeal could have been avoided.

One other important issue of note is that the Appeals Court pointed out that the “modification of rights under G. L. c. 208, § 34, does not, in the circumstances, act as an ‘unknowing waiver’ of the husband’s alimony rights.” In other words, the Alimony Reform Act does not automatically invalidate prenuptial agreement limitations on alimony merely because the law changed.

2. The Trial Court Order for Husband to reimburse temporary alimony paid from separate assets was overturned.

The Husband had requested a temporary order of $12,000 per month in alimony to be paid from the Wife to him. The Wife responded with a more modest proposed order of $1,500 per month. The Judge’s Temporary Alimony Order was $2,000 per month. The Wife never objected to the temporary ordering of alimony. A total of $32,000 was paid before the alimony was suspended. The Wife requested that Husband be Ordered to pay this money back to her. The Appeals Court rejected Wife’s argument that the payment of temporary alimony unjustly enriched the Husband. The Appeals Court focused on the fact that the Wife had made a proposal for a lower amount rather than arguing that alimony was excluded completely due to the prenuptial agreement.

Given that the recent case law treats temporary alimony during the pendency of the divorce action than alimony as part of the Judgment, drafters of prenuptial agreements going forward should include specific language with respect to temporary alimony. Failure to do so could be a risk for potential payors.

3. The Appeals Court upheld the Trial Order for Wife to be solely responsible for a $100,000 liability created during the marriage.

After the Parties separated but while they were still married, the Wife borrowed funds to pay what she termed “legitimate familial obligations.” The Husband objected and suggested the possibility of the Wife obtaining those funds from other sources. Husband further claimed he did not know she was borrowing these funds and had not been asked to agree to such. Based in party on how the funds were spent (to support adult children of the wife’s previous husband) and the timing of the loan (post separation), the lower court agreed with the Husband’s position. The Appeals court found no abuse of discretion in this determination.

For mediation or representation of Prenuptial Agreements contact Berid & Schutzbank for a consultation.

Categories: Articles and Family Law & Divorce.