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Prenuptial
and Antenuptial Agreements |
Judge
Overruled in Setting Higher Past Income
as Basis for Alimony and Support |
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Summary:
Judge uses much higher income than
current (due to stock market bubble)
to determine alimony leaving the father
with potentially a $200,000 annual
deficit by forcing him to pay alimony
based on an income more than double
his current income.
This
case could have some broad implications
for fathers in judicial abuse of
discretion. The judge basically
decided to rewrite a valid
antenuptial contract to his liking
based on bias against the father:
https://fathersunite.org/prenuptial_and_antenuptial_agreements.htm.
This tampering with the agreement
was overturned.
It
is about judges abusing their authority
and changing the terms of an antinuptial
agreements (maybe any agreements?) to
their liking.
Jay
spent a fortune getting this win
and I think it is a precedent that
can be used in many cases, not just
prenup and antenup but because it
may limit a judge's discretion and
ability to select any income he/she
desires as does Flaherty v. Flaherty
to tilt the playing field towards
women.
This
calculation was fairly arbitrary
and effectively maximized by the
judge based on income earned during
the stock market bubble every knows
existed (and strong bias against
the man it would seem). This put
poor Jay in the position of being
required to pay 21% of $1,000,000 +
child support = 46% of the phantom
gross income + taxes of 45%
-- potentially 91% of his actual
income to his wife who was already
earning $80,000 on her own.
This
took a person with about
a $430,000 income and left him
with nothing to live on while the
wife makes $80,000 working part-time
+ $90,000 from him in alimony alone
+ child support!!!!!!!!
For an income in excess of $200,000
while the father is driven into
the poor house eating up his assets.
Disgusting!!
Thankfully
the higher court had some sense
and reversed this stupidity, though
just left it to the same idiot,
biased judge (a major flaw in the
system to kick back to original
judge it seems) who calculated
the income incorrectly to mediate
the formula for this.
Extract:
On appeal, the husband argues that
as the agreement was valid and enforceable,
the judge was obligated to enforce
its terms as written. Therefore,
the creation of a fixed alimony
payment based on an average of the
husband's gross income was effectively
a modification of the alimony provision,
and in error. We agree.
The
5 page report on the case is also
available
below.
Click on the link, then click
on "Opinions" under
appeals court. Then click on
my case..it is about 5 pages
long.
http://www.massreports.com/slipops/
This
is an appeals court case. THIS
EXPLAINS WHEN ANTE-NUPTIALS
WILL BE HONORED. The gist of
it is as to property division
and alimony, unless she was
tricked into signing, or unless
she would be destitute upon
divorce, they will be deemed
valid. (As to child support,
which is outside of this context,
law is more complex.)
SHORT STORY: They are always
valid unless she can't even
maintain herself, or there was
some type of wrong doing going
on at time of formation. (This
is usually a claim that she
did not know what she was signing.)
So you have an ante-nuptial
(pre-marital contract and ante-nuptial
mean the same thing).
Hey, just like child support,
the wife argued husband lied
about his income and would continue
to lie. Pursuant to the agreement,
alimony was to be determined
by the number of years of the
marriage, multiplied by the
income of the husband. So what's
a court to do that can never
believe a father? The trial
court ruled that father was
never to be believed, either
now or in the future.
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JAY
S. KORFF vs. JILL R. KORFF (and a companion
case n1 ). |
n1 Jill R. Korff vs.
Jay S. Korff. |
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No. 04-P-1212 |
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APPEALS COURT OF MASSACHUSETTS
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April 15, 2005, Argued |
July 22, 2005, Decided |
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PRIOR
HISTORY: [*1] Middlesex. Complaints
for divorce filed in the Middlesex
Division of the Probate and Family
Court Department on February 28 and
December 26, 2002. The cases were
heard by Spencer M.
Kagan, J.
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff husband
appealed a judgment by the Middlesex
Division of the Probate and Family
Court Department (Massachusetts) that
granted alimony to defendant wife;
the husband claimed, inter alia, that
the trial court erred in altering
the alimony provisions of the parties'
antenuptial agreement.
OVERVIEW: The parties' antenuptial
agreement provided, in part, that
in case of divorce, alimony would
be determined annually based upon
the husband's gross income multiplied
by a percentage that was determined
by the length of the marriage. Rather
than adhere to that provision, however,
the trial court considered Mass. Gen.
Laws ch. 208, § 34 and proceeded
to modify the agreement based upon
a finding that the husband lacked
financial credibility. Therefore,
the trial court ordered a fixed annual
amount of alimony based on the average
over the last five years of the husband's
gross income. The appellate court
found that the trial court anticipated
ongoing, future, annual breaches by
the husband and instituted preventive
measures by fixing a set amount of
alimony to be paid over the life of
the agreement, in direct conflict
with its clear language that alimony
was to be determined annually. Although
understandable, the solution was,
nonetheless, legally impermissible.
OUTCOME--THE TRIAL COURT JUDGE GOT
IT WRONG, BAD TRIAL COURT JUDGE:
That part of the judgment that pertained
to alimony was vacated, and the matter
was remanded for a determination of
the appropriate alimony for the period
in question.
VALIDITY OF ANTENUPTIAL AGREEMENTS:
Once it is determined that an antenuptial
agreement is valid, it is improper
for a probate court judge to alter
its alimony provisions. More Like
This Headnote
YOU THROW OUT THE STATUTE WHEN THE
ANTE-NUPTIAL CONTRACT IS VALID:
In a divorce context, the existence
of a valid antenuptial agreement obviates
the need for a court to consider the
statutory factors under Mass. Gen.
Laws ch. 208, § 34. (Rinaldo's notes:
Section 34 factors are nearly identical
for both alimony and property division.)
DON'T LOOK AT STATUTORY FACTORS TO
SEE IF THE ANTE-NUPTIAL IS VALID:
In a divorce context, the factors
of Mass. Gen. Laws ch. 208, § 34,
are inapplicable considerations in
determining either the validity of
an antenuptial contract, or in the
interpretation of a valid antenuptial
contract. THIS IS SLIGHTLY BIG, BECAUSE
PRIOR CASE LAW SUGGESTED THAT IF OUTCOME
UNDER CONTRACT IS VERY DIFFERENT FROM
SECTION 34 FACTORS, IT MAY NOT BE
VALID CONTRACT.
MATHEMATICAL PRECISION NOT REQUIRED:
An antenuptial agreement need not
approximate an alimony award that
a judge would be required to make
under Mass. Gen. Laws ch. 208, § 34.
Judged by those statutory requirements,
the parties' right to settle their
assets as they wish would be meaningless.
HOW IS CHILD SUPPORT DETERMINED: Child
support is controlled by Mass.
Gen. Laws ch. 208, § 28, and the Massachusetts
Child Support Guidelines.
HOW DO YOU DETERMINE THE VALIDITY
OF A PREMARITAL AGREEMENT--THEN AND
NOW DUAL INQUIRY: In determining the
validity of an antenuptial agreement,
a judge must undertake a dual-pronged
inquiry.
(1) First, he must establish whether
the agreement was fair and reasonable,
at the time of execution.
(2) Next, taking a "second look,"
the judge must inquire whether the
agreement, at the time of the divorce,
is "conscionable."
OK, SO WHAT IS UNCONSIONABLE?: Under
the conscionability standard, a judge
may not relieve the parties from the
provisions of a valid antenuptial
agreement unless, due to circumstances
occurring during the course of the
marriage, enforcement of the agreement
would leave the contesting spouse
without sufficient property, maintenance,
or appropriate employment to support
herself.
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Jay
S. KORFF vs. Jill R. KORFF (and a companion
case [FN1]). |
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No. 04-P-1212. |
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April 15, 2005. - July
22, 2005. |
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Present: Kantrowitz,
Doerfer, & Cohen, JJ. |
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Divorce
and Separation, Alimony. Contract,
Antenuptial agreement.
Complaints for divorce filed in the
Middlesex Division of the Probate
and Family Court Department on February
28 and December 26, 2002.
The cases were heard by Spencer M.
Kagan, J.
Elizabeth A. Zeldin (Suzanne T. Mancuso
with her) for Jay S. Korff.
Nancy A. Freed (Peter A. Kuperstein
with her) for Jill R. Korff.
KANTROWITZ, J.
Once it was determined that an antenuptial
agreement was valid, it was improper
for the Probate Court judge to alter
its alimony provisions. [FN2]
Facts. The parties were married on
March 29, 1992, two days after signing
an antenuptial agreement (agreement),
which provided, in part, that in case
of divorce, alimony was to be determined
annually, based upon the husband's
gross income multiplied by a percentage
that was determined by the length
of the marriage. If, for example,
the marriage lasted from sixty-one
through 120 months, the wife would
be entitled to sixteen percent of
the husband's gross income; if it
lasted from 121 through 180 months,
the percentage would rise to twenty-one
percent. The agreement provided that
the end of the marriage would be "[u]pon
the filing of a Complaint for Divorce."
On February 28, 2002, the husband
filed, but did not serve, a complaint
for divorce in the Probate Court.
The husband did not tell the wife
that he had filed for divorce, and,
in fact, the couple continued to live
together as husband and wife until
December 26 of that year, when the
wife filed and served her own complaint
for divorce. [FN3]
The first issue thus litigated was
the true date of the divorce filing:
February 28, 2002, as the husband
claimed (thus setting the marriage
length at 119 months, entitling the
wife to sixteen percent of the husband's
gross annual income) or December 26,
2002, as the wife claimed (which resulted
in a marriage length of 129 months,
entitling the wife to a twenty-one-percent
share). The judge found that the controlling
date was December 26, 2002, thus establishing
the alimony provision at twenty-one
percent. [FN4]
Despite some mild protestations by
the wife, the validity of the agreement
was never really at issue, and the
judge, after hearing some evidence
on the subject, quickly turned to
the question of alimony. [FN5] The
husband was a financial advisor at
Morgan Stanley and his income, based
primarily on commission and deferred
production bonuses, varied substantially
from year to year. [FN6] His college-educated
wife worked part-time in magazine
advertising sales, earning, on a commission
basis, $97,959 in 2003 and $38,252
in 2002.
As explained above, the agreement
provided that alimony was to be based
upon a yearly percentage of the husband's
gross income. [FN7] Rather than adhere
to this provision in the contract,
however, the judge proceeded to modify
it based upon his finding that the
husband "has no financial credibility."
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[FN8] For that reason, the judge
ordered a fixed annual amount
of alimony, based on the "average
over the last five years of the
Husband's gross income,"
arriving at an average gross income
figure of $926,725.50. [FN9] The
wife was, therefore, to be paid
a monthly sum of $14,625.24 until
the agreement terminated. [FN10]
The judge also ordered attorney's
fees and costs in the amount of
$25,000 to the wife. [FN11] |
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On appeal, the husband argues that
as the agreement was valid and enforceable,
the judge was obligated to enforce its
terms as written. Therefore, the creation
of a fixed alimony payment based on
an average of the husband's gross income
was effectively a modification of the
alimony provision, and in error. We
agree.
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Discussion.
As the validity of the agreement is
not an issue before us, we need not
discuss it at length. Suffice it to
say that in determining the validity
of an antenuptial agreement, the judge
must undertake a dual-pronged inquiry.
First, he must establish whether the
agreement was " 'fair and reasonable,'
at the time of execution." DeMatteo
v. DeMatteo, 436 Mass. 18, 30 (2002),
quoting from Rosenberg v. Lipnick,
377 Mass. 666, 672 (1979). Next, taking
a "second look," the judge
must inquire whether the agreement,
at the time of the divorce, is "conscionable."
DeMatteo v. DeMatteo, supra at 34,
38. Under the conscionability standard,
"a judge may not relieve the
parties from the provisions of a valid
[antenuptial] agreement unless, due
to circumstances occurring during
the course of the marriage, enforcement
of the agreement would leave the contesting
spouse 'without sufficient property,
maintenance, or appropriate employment
to support herself.' " Id. at
37, quoting from 1 Clark, Jr., Domestic
Relations in the United States § 1.9
(2d ed.1987).
In the instant matter, the judge found
the agreement to be valid and enforceable
not only at the time of execution,
but also at the time of the divorce.
Neither party contests this holding,
nor do we find it to be in error.
[FN12] Notwithstanding this conclusion,
however, the judge modified the alimony
provision based on his finding that
the husband lacked financial credibility.
Thus, anticipating ongoing, future,
annual breaches by the husband, the
judge instituted preventive measures
by fixing a set amount of alimony
to be paid over the life of the agreement,
in direct conflict with its clear
language that alimony was to be determined
annually. Although, based on the record,
the judge's displeasure with the husband's
conduct is understandable (e.g., his
treatment of Jill, including subjecting
her to vile name-calling and physical
force, his failure to disclose assets
in his financial statements, and his
covert filing and failure to serve
his complaint for divorce), the solution
was, nonetheless, legally impermissible.
(Husband disputes these claims)
The agreement called for alimony to
be adjusted on an annual basis, the
wife receiving twenty-one percent
of the husband's gross income, as
defined in the agreement. While the
agreement does not provide a formal
mechanism for the parties to agree
upon the calculation of gross annual
income [FN13] and alimony readjustment,
the parties would be wise, in the
future, to arrange one. While we are
remanding this matter for a determination
of the husband's alimony obligation
for the year in question, in the future
that figure will have to be determined
anew on an annual basis. If the parties
cannot agree as to how that figure
is to be calculated, or if the wife
is dissatisfied with the method employed
by the husband, she is free to return
to court for an accounting, a legal
determination of the amount owed,
or a complaint for contempt or breach
of contract, including a breach of
the duty of good faith and fair dealing.
See, e.g., DeCristofaro v. DeCristofaro,
24 Mass.App.Ct. 231, 234-237 (1987);
Larson v. Larson, 37 Mass.App.Ct.
106, 109-110 (1994). A judge would
be free, among other options, to appoint
a master under Mass.R.Dom.Rel.P. 53
(1997), and/or to assess attorney's
fees and costs if deemed appropriate,
as allowed by article IV(B)(4) of
the agreement.
Conclusion. So much of the judgment
of divorce as pertains to alimony
is vacated. The matter is remanded
for a determination, consistent with
this opinion, of the appropriate alimony
for the period in question. [FN14]
Whether to reopen the evidence is
within the judge's discretion. [FN15]
The wife's request for appellate counsel
fees is denied. Although we vacate
the order for support, the present
terms are to remain in effect temporarily
pending new orders by the Probate
Court judge.
So ordered. |
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FN1. Jill R. Korff vs. Jay S.
Korff. |
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FN2. The husband also claims that
the award of attorney's fees to
the wife was error. We disagree
and affirm that aspect of the
judgment. See G.L. c. 208, §§
17, 38; DeMatteo v. DeMatteo,
436 Mass. 18, 38-39 (2002). |
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FN3. The husband served the wife
with his divorce complaint on
June 19, 2003, two days after
the wife served the husband with
a motion to dismiss his divorce
complaint. |
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FN4. The judge found that the
"Husband did not present
sufficient or credible evidence
of any nature as to why he did
not serve the Wife a Domestic
Relations Summons, within 90
days of February 28, 2002, as
required under Massachusetts
law." The husband also
admitted that he filed the complaint
in February, 2002, to "preserve
the percentage of assets that
would be awarded to the Wife
under the Agreement." The
husband is not appealing this
finding. Indeed, in his prayer
for relief he asks us to "order
Jay to pay to Jill a sum equal
to 21% of Jay's gross income." |
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FN5. In spite of his appropriate
observation that "the existence
of a valid Antenuptial Agreement
obviates the need for the Court
to consider the statutory factors
under G.L. c. 208, § 34,"
the judge, nevertheless, undertook
a detailed analysis of those
factors for the purported purposes
of "interpreting the parties[']
Agreement and determining an
appropriate level of child support."
The factors of G.L. c. 208,
§ 34, are inapplicable considerations
in determining either the validity
of an antenuptial contract,
or in the |
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interpretation of a valid antenuptial
contract. See, e.g., DeMatteo
v. DeMatteo, 436 Mass. at 31
("[A]n antenuptial agreement
need not approximate an alimony
award ... a judge would be required
to make under G.L. c. 208, §
34. Judged by those statutory
requirements, the parties' right
to settle their assets as they
wish would be meaningless").
Furthermore, child support is
controlled by G.L. c. 208, §
28, and the Massachusetts Child
Support Guidelines. |
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FN6. He earned, in 1998, $1,346,909.51;
in 1999, $903,652.91; in 2000,
$1,590,450.19; in 2001, $1,426,528.23;
in 2002, $547,618.10; and in 2003,
through October 31, $430,028.98. |
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FN7. Gross income was defined
as "all income earned in
a given year whether from declared
or deferred compensation, excluding
deferred compensation earned in
a prior year but elected to be
taken in the current year, minus
any child support paid by [the
husband]." |
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FN8. This finding was based on
the husband's failure to list
residual income and other assets,
including a one-quarter share
of his mother's house, which she
deeded to her sons in 1998, leaving
a life estate for herself. As
for the drop in income the last
two years, the judge found that
the husband |
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"intentionally, either voluntarily
directly or indirectly reduced
his income to reduce his exposure
to the proper amount of alimony
and child support." There
is scant direct evidence on this
point. Indeed, the only evidence
appears to be to the contrary,
i.e., that he lost a major account
and the stock market declined. |
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FN9. That figure excluded the
husband's production bonus, which
the judge considered "deferred
compensation" under the agreement.
This was not raised as an issue
on appeal. |
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FN10. Under the agreement, the
alimony obligation would terminate
upon (1) the husband's death;
(2) the wife's death; (3) the
wife's remarriage; or (4) after
a period of time equal to the
length of the marriage--in this
case, 129 months (10 years, 9
months). |
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FN11. The judge also ordered,
in accordance with the agreement,
arbitration on the division of
assets, as well as child support.
Neither issue is contested here. |
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FN12. Even considering the husband's
lowest year of income, $430,028.98
for part of 2003, the wife would
have been entitled to at least
$90,306.09, leaving |
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her with sufficient support under
the parameters of DeMatteo. |
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FN13.
This is not a case of self-employment
with a possibility of hiding
assets. The husband here is
employed by Morgan Stanley,
and his income and benefits
can be, it appears, readily
ascertainable. The more troublesome
area is when a husband has the
ability to generate income but
does not. See generally Schuler
v. Schuler, 382 Mass. 366, 373-374
(1981); Bassette v. Bartolucci,
38 Mass.App.Ct. 732, 735-736
(1995); Flaherty v. Flaherty,
40 Mass.App.Ct. 289, 291 (1996).
Whatever remedies that might
be fashioned in such a case
do not include the rewriting
of a valid antenuptial agreement. |
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FN14. In light of our holding,
we do not reach the husband's
claims of error as to the judge's
factual findings. Virtually all
of the factual findings at issue
relate to the improper modification
of the agreement. |
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FN15. The husband was not allowed
to call his supervisor as a witness,
apparently due to late notice
to the wife that he would be testifying.
It appears that if the evidence
were reopened, the supervisor
would be able to shed light in
the area of the husband's earnings.
See note 8. |
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