Comparing Prenuptial Agreements in Rhode Island and Massachusetts

Comparing Prenuptial Agreements in Rhode Island and Massachusetts

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A twenty dollar bill, wedding rings, and a prenuptial agreement are shown in this photo.

ENFORCEMENT OF PRENUPTIAL AGREEEMENTS IN RHODE ISLAND

“The Uniform Premarital Agreement Act is a uniform act that provides a basis for states to determine how and when a premarital agreement should be enforced. The Act was drafted by the National Conference of Commissioners on Uniform State Laws in 1983.” See Amberlynn Curry, “Comment: The Uniform Premarital Agreement Act and Its Variations Throughout the States,” 23 J.A.A.M.L. 355 (2010).

The Rhode Island Legislature adopted its version of the Uniform Premarital Agreement Act (hereinafter the “UPAA”) in 1987. The UPAA applies to any premarital agreement executed on or after July 1, 1987. See RIGL §15-17, Refs & Annos.; Penhallow v. Penhallow, 649 A.2d 1016, 1020 (R.I. 1994).

Rhode Island’s version of the UPAA is unique and particularly harsh on a party seeking to have a premarital agreement declared unenforceable:

“Rhode Island made very few changes from the original UPAA when it enacted its UPAA. All of the changes occur in the Enforcement section. The first change is an ‘or’ to an ‘and’ in section 15-17-6(a)(1), thus changing the section to say that an agreement is not enforceable if it was not executed voluntarily and the agreement was unconscionable. While this change may seem small, its impact is huge; under Rhode Island a party trying to prove that an agreement is unenforceable must prove both that the agreement was not entered into voluntarily and that the agreement was unconscionable when it was executed. In the original UPAA and all other states an agreement not being voluntary is sufficient grounds to have the agreement be deemed invalid. Another change to the Rhode Island UPAA is that the legislature inserted a subsection (b) in section 15-17-6 which states that the burden of proof is on the party trying to have the agreement declared unenforceable and that party must prove this by ‘clear and convincing evidence.’ This subsection provides a definite standard for the court to use to measure whether the party has met his or her burden of proof. With these two changes, the Rhode Island legislature has made it harder for the person against whom enforcement is being sought to have the agreement be declared unenforceable.”

See “Comment: The Uniform Premarital Agreement Act and Its Variations Throughout the States” 23 J.A.A.M.L. 355 (2010).

The Rhode Island Supreme Court has confirmed that a heavy burden is imposed on a party seeking to render a premarital agreement unenforceable under Rhode Island’s version of the UPAA, as the party must prove, by clear and convincing evidence, that (1) they did not execute the agreement voluntarily; and (2) the agreement was unconscionable when it was executed; and,  before the execution of the agreement that party: (i) was not provided a fair and reasonable disclosure of the property or financial obligation of the other party; (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (ii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. See RIGL §15-17-6; Penhallow v. Penhallow, 649 A.2d 1016 (R.I. 1994); Marsocci v. Marsocci, 911 A.2d 690 (R.I. 2006).

The Uniform Premarital Agreement Act has been subject to criticism since its passage; the most compelling critique focuses on the enforceability of an agreement that was unconscionable at execution as long as it was executed voluntarily with financial disclosure or an effective waiver. See J. Thomas Oldham, “With All My Worldly Goods I Thee Endow, or Maybe Not; A Reevaluation of the Uniform Premarital Agreement Act After Three Decades,” 19 Duke J. Gender L. and Poly 83 (Fall 2011); Judith T. Younger, “Lovers’ Contracts in the Courts: Forsaking the Minimum Decencies,” 13 Wm & Mary J. Women & L. 349 (2007).

In Marsocci v. Marsocci, 911 A.2d 690 (R.I. 2006) the Rhode Island Supreme Court forced the trial court to enforce a Ante-Nuptial Agreement that it agreed was unconscionable. The Court’s harsh decision in Marsocci is strictly based on its adherence to Rhode Island’s version of the UPAA.

Bottom Line – Short of a “perfect storm” of defects in drafting, execution, and disclosure of assets, Premarital Agreements in Rhode Island are going to be enforced.

ENFORCEMENT OF PRENUPTIAL AGREEEMENTS IN MASSACHUSETTS

  • Massachusetts has long recognized Premarital Agreements; however, it has not passed a version of the Uniform Premarital Agreement Act.
  • The recognition of Premarital Agreements is codified in M.G.L. c. 209, § 25 which provides as follows:

At any time before marriage, the parties may make a written contract providing that, after the marriage is solemnized, the whole or any designated part of the real or personal property or any right of action, of which either party may be seized or possessed at the time of the marriage, shall remain or become the property of the husband or wife, according to the terms of the contract. Such contract may limit to the husband or wife an estate in fee or for life in the whole or any part of the property and may designate any other lawful limitations. All such limitations shall take effect at the time of the marriage in like manner as if they had been contained in a deed conveying the property limited.

  • The statute allows the parties, by agreement, to each keep their own property separate, and thus not be assignable in a divorce case under the equitable property division statute [M.G.L. c. 208, § 34] in the event of a divorce. Osborne v. Osborne, 384 Mass. 591, 428 N.E.2d 810 (1981); DeMatteo v. DeMatteo, 436 Mass. 18, 762 N.E.2d 797 (2002); See also § 8:18. Statutes governing premarital contracts, 1 Mass. Prac., Family Law and Practice § 8:18 (4th ed.)
  • The statute also permits a contract in which claims on the estate of each are limited in the event of the death of one of them after the marriage. Osborne v. Osborne, 384 Mass. 591, 428 N.E.2d 810 (1981); Collins v. Collins, 212 Mass. 131, 98 N.E. 588 (1912); See also § 8:18. Statutes governing premarital contracts, 1 Mass. Prac., Family Law and Practice § 8:18 (4th ed.)
  • The Supreme Judicial Court has imposed a requirement of reasonableness on Premarital Agreements. Osborne v. Osborne, 384 Mass. 591, 428 N.E.2d 810 (1981)
  • In order to be enforceable, the SJC requires that Premarital Agreements be fair and reasonable at the time of execution and not unconscionable later when one of the parties seeks to enforce it. Osborne v. Osborne, 384 Mass. 591, 428 N.E.2d 810 (1981); DeMatteo v. DeMatteo, 436 Mass. 18, 762 N.E.2d 797 (2002).
  • In addition, the SJC requires that the agreement must be free from fraud, imposition, deception or overreaching by one party against the other. Rosenberg v. Lipnick, 377 Mass. 666, 389 N.E.2d 385 (1979).
  • Bottom Line – Massachusetts allows for a “second look” at the Premarital Agreement by the Probate and Family Court.

SUMMARY/DIFFERENCES

  • In Rhode Island, an individual challenging a Premarital Agreement bears a heavy burden as that individual must show:

1) That they did not execute the agreement voluntarily; and

2) the agreement was unconscionable when it was executed; and,  

3.) before the execution of the agreement that party:

(i) was not provided a fair and reasonable disclosure of the property or financial obligation of the other party;

(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

(ii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

  • Under Rhode Island’s standard for enforcement, a Premarital Agreement that is unconscionable at the time of enforcement can still be enforced as long as other party executed the Agreement voluntarily and was provided with and/or waived financial disclosure at time of execution.
  • In Massachusetts, a Family Court justice is given more latitude in enforcing a Premarital Agreement, as the Court is required to look at circumstances at the time of the execution and at the time of enforcement. This latitude would allow the Courts to invalidate a Pre-Nuptial Agreement that is unconscionable at the time of enforcement.
  • Bottom bottom line, if you have a Pre-Nuptial Agreement that you would like to have enforced, live in Rhode Island at the time of marriage and state the governing law to be Rhode Island, as under the current law, it is virtually impossible to invalidate a properly executed Premarital Agreement.  

Here at Keough + Sweeney we can help answer any further questions about prenuptial agreements in Rhode Island and Massachusetts. Contact us at 401-724-3600.