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Fogg v. Fogg – A Massachusetts Case on Post Nuptial Agreements

Stanley R. Fogg v. Geraldine Fogg
409 Mass. 531 567 N.E.2d 921 (1991)
Supreme Judicial Court

Stanley Fogg and Geraldine Fogg were married. It was a second marriage for both, and each had children from the previous marriages. Shortly thereafter they experienced marital problems. In order to move forward with the marriage, they executed a postnuptial agreement wherein the husband agreed to transfer property and assets to the wife at the wife’s request, with the ostensible intent that the marriage would be more viable and would continue. Here are some words from the decision:

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The [trial court] judge stated in his findings that “[a]n agreement regarding disposition of assets as a condition of keeping the marriage together was sought by [the wife].” The husband signed believing that, by doing so, his wife would not divorce him or, at least, that she would attempt to preserve the marriage. The [trial] judge found that the wife was “solely interested in financial security and financial gain.” He stated that, in entering into the agreement, the wife “was seeking an adequate and secure financial arrangement for herself,” while the husband was hoping the agreement would make the marriage viable.The wife’s intentions at the time of signing were contrary to those set forth in the agreement that “the [parties] share the belief that, if they are able to agree upon an orderly disposition of these assets, the cause of any domestic friction and unhappiness will be eliminated, and their marriage will be preserved thereby.” She induced her husband to sign the agreement by outwardly pledging her belief that, if the financial arrangements were made, she would then try to preserve the marriage. While promising to persevere, she was really only concerned with obtaining a favorable settlement of the marital assets.

At issue is the [trial] judge’s refusal to enforce specifically the agreement. The judge refused to adhere to the agreement and made an equitable distribution of the marital assets under G.L. c. 208, § 34 (1988 ed.). … While we decline to determine the validity of so-called “postnuptial” agreements, we rule that the judge did not commit error in refusing to enforce this agreement. Even if this type of agreement is valid, it must be free from fraud and coercion and meet the requirements set forth in Knox v. Remick, 371 Mass. 433, 436, 358 N.E.2d

432 (1976). The judge’s findings indicate that the agreement here was not free from fraud because the wife, while outwardly pledging to persevere in the preservation of the marriage, was simply concerned with arranging a favorable financial settlement.In Knox v. Remick, we recognized that parties may enter into a separation agreement which anticipates divorce, to resolve permanently their rights and obligations, including support obligations. Id. At 436, 358 N.E.2d 432. The judge shall first determine, however, that “the agreement was not the product of fraud or coercion, that it was fair and reasonable at the time of entry of the judgment nisi, and that the parties clearly agreed on the finality of the agreement.” Id. In Rosenberg v. Lipnick, 377 Mass. 666, 673, 389 N.E.2d 385 (1979), we stated that antenuptial agreements, those executed in anticipation of marriage, [409 Mass. 536] must be executed fairly, free from “fraud, imposition, deception, or overreaching.”

Although we decline to determine whether postnuptial agreements are valid, we note that, if valid, they would at least have to meet the same threshold requirements of antenuptial and separation agreements. The agreement before us was signed as a result of the wife’s implied fraudulent promise that she would attempt to preserve the marriage. Thus it is invalid.

Footnote 2: “We leave for another to another day whether agreements made after the parties have been married, and not in anticipation of an immediate divorce, are valid.”

Laurie Israel

Laurie Israel

Laurie Israel is a founder of Israel, Van Kooy & Days, LLC, a law firm located in Brookline, Massachusetts. She combines a family law practice with estate planning, tax, mediation and collaborative law. Laurie is a former board member of the Massachusetts Council on Family Mediation and the Massachusetts Collaborative Law Council. Her writings include articles on divorce, mediation, marital mediation, and prenuptial agreements. You can find her articles on, Huffington Post, and She is the author of the forthcoming book The Generous Prenup: How to Support Your Marriage and Avoid the Pitfalls.
Laurie Israel

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