Massachusetts Divorce Law Monitor : Boston, MA Divorce & Family Law Lawyer & Attorney : Nancy Van Tine : Burns & Levinson Law Firm

Hi there,

Today the Massachusetts Appeals Court (the second highest court in the state) overturned a divorce judgment in the Caveney case dealing with valuation of interests in closely held businesses.  In the process they clarified the standard to be used for divorce purposes in valuations.

Before the Bernier case in 2007, valuations of closely held businesses applied "Fair Market Value," which is what a willing buyer would pay a willing seller.  The experts would then apply discounts which reduced the value, first for lack of marketability.  If the business interest was a minority interest, they would apply a discount for lack of control.  These two discounts can and did make an enormous difference in the values applied.  Post Bernier, most experts use (or at least discuss) using "Fair Value," which generally means no discounts for marketability or lack of control.

In Bernier, the divorcing couple owned supermarkets on Martha's Vineyard.  These markets were not for sale.  The judge -- a very capable judge (disclaimer here, she once was a partner of mine) -- not unreasonably applied discounts.  The wife appealed and the Appeals Court held that the discounts should not be applied.  The Bernier decision had been read more narrowly; this decision eliminates that argument.  This case, and in circumstances where a sale of the asset is not contemplated, makes it clear that Fair Value is the standard to be applied.

Best,

Nancy

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Hi there,

Today the Supreme Judicial Court rendered its decision in the case which has set the standard for marital agreements in Massachusetts.  I was counsel for the wife in the appeal with my partners, Susan Stenger and Robin Lynch Nardone. We did not try the underlying case.

The judgment is very bittersweet for us because the court adopted the standard that we proposed for marital agreements then went on to find that at the trial our client hadn't met that standard.

Marital agreements are agreements between spouses that are neither divorce agreements nor prenuptial agreements. I very strongly believe that the opportunity for coercion is high in these circumstances (Honey sign this agreement or I will leave you) and we argued first that these agreements should not be enforced, but if the court was inclined to allow them there should be a different standard for their enforcement than is used for prenuptial agreements.

The SJC agreed; Marital agreements are now enforceable in Massachusetts, BUT

They must be scrutinized by the judge to determine at a minimum whether:

        (1) each party has had an opportunity to obtain separate legal counsel of each party's own choosing;
        (2) there was fraud or coercion in obtaining the agreement;
        (3) all assets were fully disclosed by both parties before the agreement was executed;
        (4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and marital rights in the event of a divorce; and

        (5) the terms of the agreement are fair and reasonable at the time of execution and at the time of divorce. 

The spouse seeking to enforce the agreement has burden of proof on these issues. 

This will be a very useful decision for the attorneys in Massachusetts who practice domestic relations and probate law.

Best,

Nancy

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