Cases: Judge can’t rewrite terms of prenup

Absent ambiguity, the plain meaning of a prenuptial contract controls even where it might make things more difficult for a court and a litigant, according to a recent decision by the Appeals Court of Massachusetts.

The case involved an antenuptial agreement between Jay Korff, a financial advisor at Morgan Stanley, and his wife, Jill.  In the agreement, the couple had provided for a sliding scale for alimony, which provided that Jill would receive certain percentages of Jay’s income as alimony depending on the length of the marriage.  The marriage lasted 129 months, which under the formula entitled Jill to 21 percent of Jay’s income going forward.

Jay’s annual income, based largely on commissions and production bonuses, fluctuated greatly, ranging over a five-year span between $500,000 to about $1.6 million.  At trial, Justice Spencer Kagan concluded that Jay had not been entirely candid about his income and may have deliberately tried to keep his current compensation down to reduce Jill’s share.  The appellate court found no evidence for that claim, noting that lower compensation in the most recent year appeared due to loss of a major account and a downturn in the market.  But Kagan nevertheless decided to average the previous five years and give Jill a fixed monthly alimony payment of $ 14,625.24.

Wrong, said the appeals court.  Even if there had been evidence of such activities, the agreement was clear that Jill would be entitled to a percentage of Jay’s annual income, determined annually:

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 .  .  . , the solution was, nonetheless, legally impermissible.

Since Jay’s income is all verifiable, in the form of his compensation from Morgan Stanley, Justice Marc Kantrowitz’s opinion noted that it should not be difficult to agree on annual figures.  If for some reason the parties can’t agree, however, they are free to come back to court.

Korff v. Korff, 64 Mass. App. Ct. 94, 831 N.E.2d 385, 2005 Mass. App. LEXIS 702 (July 22, 2005).