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Kelcourse v. Kelcourse, 87 Mass.App.Ct. 33, 23 N.E. 3d 124 (2015)

In Kelcourse, the Massachusetts Appeals Court upheld the trial court’s finding that the parties’ antenuptial agreement was unconscionable.

The parties married on July 6, 1991. At the time of the marriage, the husband, who was in his forties, owned and operated a marina. The wife, in her mid-twenties, was pregnant with the parties’ second child and acted as the family homemaker. The parties lived together for five years prior to their marriage in a three bedroom, water front home located in the marina. A few months prior to the marriage, the parties moved into a rental home in Amesbury. The move was supposed to be temporary. The parties executed an antenuptial agreement on July 2, 1991, four days before their wedding. By 2005, the parties were still residing in the Amesbury home and purchased the house at a discounted price of $320,000 after estimating that it needed between $80,000 and $100,000 in repairs. The wife agreed to the purchase, expecting repairs to be made. The repairs were never made and in 2010 the parties separated. The husband moved back into the marina.

When the antenuptial agreement was executed, both parties were represented by counsel. Under the agreement both parties waived interests in the other’s premarital property. The wife owned no appreciable assets, and the agreement provided that a principal residence, if purchased during the marriage, would be deemed the wife’s separate property. The agreement left the issue of spousal support open. At the time of the divorce, the residence at the marina was valued at $1.7 million and was not encumbered by a mortgage. The home in Amesbury, which had deteriorated further, was encumbered by a $256,000 mortgage. The home had boarded up windows, chipped paint, hanging utility wires, black mold and was rodent infested.

The Appeals Court noted that under DeMatteo v. DeMattteo, 436 Mass. 18, 762 N.E.2d 797 (2002), an antenuptial agreement is enforceable if it was valid at the time of execution. Further, under DeMatteo, the agreement is also subject to a “second look” during the divorce proceedings to ensure that it has the same vitality at the time of the divorce that the parties intended that it have at the time of execution. The trial court found that while the prenuptial agreement was valid when entered into, it could not be enforced upon taking a “second look.” The trial court found that the purchase of the principal residence and its subsequent neglect constituted a change in circumstances beyond what was contemplated by the parties. As a result, enforcement of the agreement would be unconscionable.

The Appeals Court held that the trial court’s determination was not error, and the record was sufficient to support the trial court’s determination. Specifically, the trial court found that enforcement of the agreement would leave the wife with a house with negative equity, documented structural issue, code violations and repairs in excess of $300,000. If the agreement were enforced, the wife would be left without sufficient property and employment to support herself. The Appeals Court further found that the judge appropriately applied the factors enumerated in M.G.L. c. 208, §23 after finding the agreement to be unconscionable. The Appeals Court found no abuse of discretion and affirmed the judgment.

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