A recent reading of the case summaries in Lawyers
Weekly drew my attention. The case, Lambrou v.
Lambrou, Essex Probate and Family Court docket no.
ES-10D-3114-DR, was cited on May 23, 2011. It is a prenuptial case
decided by the Essex Probate and Family Court.
Granted, it is not an SJC or an appellate court case, and is in
fact a prenuptial case consisting of a partial judgment. But,
nevertheless, the case drew my attention because it addressed the
issue of a prenuptial agreement which indicated that the parties
would have no marital assets.
The Essex Probate and Family Court ruled in this case that "the
agreement was invalid as a matter of law, as it was not fair and
reasonable at the time of its execution for the party contesting
the agreement." (Memorandum of Decision, May 18, 2011, at p.4) The
court pointed out that "the agreement made no provisions for
either party in the event of divorce." (Memorandum of
Decision, May 18, 2011, at p.3)
In addressing marital assets further, the court ruled, "the
document makes no provision, either in whole or in part, for any
income or assets acquired by the parties during the marriage,
either individually or jointly, directly, indirectly or equitably."
(Memorandum of Decision, May 18, 2011, at p.4)
In its ruling, the court cited MGL c. 231A and the cases of
Krapf v. Krapf, 439 Mass App. Ct. 97 (2003), Tompkins
v. Tompkins, 65 Mass. App. Ct. 487 (2006), and Broome v.
Broome, 40 Mass App. Ct. 148 (1996). (Memorandum of Decision,
May 18, 2011, at p.2)
The court also pointed out that, "the determination of whether a
prenuptial agreement is valid is governed by the … principles as
set forth in DeMatteo v. DeMatteo, 436 Mass. 18, 26 (2002)
(quoting Rosenberg v. Lipnick, 377 Mass. 666, 672
(1977))." (Memorandum of Decision, May 18, 2011, at p.2)
The main reason Lambrou drew my attention was that, in my
experience of working on prenuptial agreements, I am more often the
attorney representing the potential spouse, who is sometimes
referred to as the "lesser monied spouse," the "LMS," the one who
has lesser assets, income and means at the time of the upcoming
nuptials. I am most frequently the attorney who receives the draft
prenuptial agreement from the attorney for the "more monied
spouse," the "MMS."
Oftentimes, these draft agreements indicate inter alia
that the parties will have no marital assets. These are what I
refer to as the "mine, yours, but never ours" agreements. When this
occurs, I often find myself wondering, and even expressing to the
attorney for the MMS and to my client (the LMS) why the MMS is
getting married instead of getting a roommate. This may appear to
be an odd statement, given that the parties may have planned a
wedding to take place within the next month, for example, with all
the trappings of a bridal magazine wedding.
However, the statement signifies that the notion of "never ours"
is not realistic. In fact, the roommate statement signifies that
this notion is not novel at all, and it has, in fact, been
addressed in this case and other more recent prenuptial agreement
cases since DeMatteo and Lipnick.
For example, in Eyster v. Pechenik, 71 Mass. App. Ct. 273
(2008), the court, in finding that the parties' prenuptial
agreement was invalid, found that while the agreement did address
gifts and inheritance that the other party might receive during
his/her lifetime, there was no provision for assets acquired during
In Ansin v. Craven-Ansin, 457 Mass. 283 (2010) the SJC
ruled not only that the postnuptial agreement was not against
public policy, but also that the agreement was enforceable. One may
look at Ansin as a case notably addressing a postnuptial agreement,
but also as a case which addresses a postnuptial agreement which
was modified over time, an agreement which further addressed assets
as the parties' marriage continued.
When drafting and negotiating prenuptial agreements, we need to be
mindful that not only will the parties possibly have title to real
estate in both of their names, but also there will most likely be a
joint checking account, automobiles and even furniture that the
parties obtain over the course of their marriage.
While it is certainly appropriate for the new agreement to address
premarital assets such as retirement funds, real estate, bank
accounts and inheritance, it is not appropriate for a prenuptial
agreement to indicate that there will not be marital assets at
In the last several months, I have found myself providing the
Lambrou case to opposing counsel in response to his/her
position that the parties will have no marital assets after their
marriage. The result has been that the opposing party cannot argue
with the concise ruling set out so clearly by the Essex Probate and
Family Court in Lambrou, as it is a consistent ruling
based on other Massachusetts prenuptial cases and Massachusetts
Thomas J. Barbar is principal with the Family Law
Department of Deutsch, Williams, Brooks, DeRensis & Holland PC
in Boston, concentrating in the fields of probate and domestic
relations. He is chair of the Massachusetts Bar Association's Law
Practice Management section for 2011-2012.