Prenups: Appeals Court Reaffirms “Second Look” Requirement

On January 21, 2015, the Massachusetts Appeals Court reaffirmed the 'second look' requirement with respect to the enforcement of prenuptial agreements. In the Kelcourse case, the Appeals court reaffirmed the requirements for a prenuptial agreement to be enforceable in Massachusetts; specifically, it must have been valid when executed and must be conscionable at the time of divorce.  The 'second look' at the prenuptial agreement at the time of divorce ensures that the agreement has the same consequence at the time of divorce as the parties intended at the time of the execution of the agreement.  The Court reiterated that a prenuptial agreement will not be enforced if, due to circumstances that occurred during the course of the marriage, enforcement of the prenuptial agreement would leave the contesting spouse without sufficient property, maintenance, or appropriate employment to support himself/herself.  Therefore, even if the prenuptial agreement was valid when executed by the parties, the Court could determine that it is not enforceable at the time of divorce because of circumstances that occurred during the marriage that make enforcement of the prenuptial agreement unconscionable.


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