Beyond The Standard Pre-Nuptial Agreement

The Massachusetts courts are routinely accepting properly drafted Pre-Nuptial Agreements as a means of dissolving the financial aspects of a partnership without the necessity of litigation. However, it is vitally important that the language in these agreements be iron-clad in order to prevent the Court from voiding it.

In addition to the language routinely inserted in Pre-Nuptial Agreements, I strongly recommend to my clients, the insertion of language which specifically prohibits either party from suing the other for a breach of contract, quantum meruit and for the establishment of the existence of a constructive trust.

Recently, I was hired to defend a man whose girlfriend sued him for the above, despite the fact that the man was and had been married to someone else throughout this relationship and that the girlfriend was fully aware of his legal commitment to his wife. My client, his wife and young child were from another country, but he longed for a better life in the United States. Having no interest in leaving her country, his wife freely allowed him to emigrate and bring their son to this country, which he did. Moral ambiguities aside, prior to leaving his country, he had made the acquaintance of a woman who well knew of his marital status. My client was clear from the time he met this woman that he was never going to obtain a divorce for her and they would never marry.

Notwithstanding, the acquaintance came to the United States for a brief visit after my client moved here, subsequently returning to her country. One year later she moved to Massachusetts with her child, her sister and her niece to live with him. By then, my client had developed a thriving business and his girlfriend went to work with him at his company. My client's business was successful enough to not only support his son and him, but also, his girlfriend, her child, her sister and her sister's child, although not one of them was making any contribution to my client's household or living expenses.

After three years of my client and his girlfriend working together in his business, a new opportunity became available to him and he gave his business to his girlfriend.

After several years of deterioration, the relationship was over but the girlfriend refused to move out. My client had purchased a home in a suburb of Boston where the public school system is excellent, resulting in the girlfriend's daughter and niece benefiting from a public school education there.

The girlfriend ultimately became enraged at the termination of the relationship, compelling my client to obtain a restraining order for his safety and to have her removed from the home. In addition to having provided room and board for the woman and her extended family for several years and having given her his business to own and operate, she immediately sued him for breach of contract, for quantum meruit (for the court to grant her "what she deserved") and to establish a constructive trust (asking the court to find that he committed fraud or another illegal activity) seeking as damages one half (1/2) of everything he owned which included five (5) homes and two (2) businesses. The case was resolved favorably for my client, but not without great expense and emotional anguish.

Had the parties entered into a contract prohibiting either of them from filing a frivolous lawsuit like the one outlined above, this scenario could have been avoided. The importance of the correct language in a pre-nuptial agreement cannot be stressed more significantly than by the anecdotal evidence described above.

For those contemplating marriage or a shared living arrangement, I highly recommend that a Pre-Nuptial Agreement contain language prohibiting either party from suing the other for breach of contract, quantum meruit, or the establishment of a constructive trust, in addition to the more standard language in these agreements which defines how the finances will be resolved in the event of the termination of the relationship.

At the risk of repeating what I have often written in prior articles related to this topic, while love is grand, … divorce is one hundred grand.

Written by Attorney Judith A. Wayne