Appeals court asked to void prenup, with counsel split over 'first' and 'second look' tests
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Summary
In the Desjardins appeal, appellant counsel argued pre‑execution misrepresentations and later nonperformance by the husband rendered the prenuptial agreement unfair; appellee counsel said the parties negotiated with counsel and trial findings satisfied DiMaggio’s first‑ and second‑look fairness tests.
The panel considered an interlocutory appeal about what constitutes a final, appealable judgment and the fairness and enforceability of a prenuptial agreement in Desjardins v. Jess (Docket 25P0722).
Kevin Kaur, representing the appellant (the wife), argued the agreement contained provisions that violated public policy and that evidence of pre‑execution inducement, post‑execution nonperformance (for example, alleged failure to maintain insurance or to make promised retirement contributions) and other conduct could render the contract unfair and unenforceable under DiMaggio and related SJC precedent. Kaur asked the court to scrutinize whether the trial court applied the first‑ and second‑look analyses properly and whether certain factual findings were ignored or downplayed.
Opposing counsel David Churney argued the prenup was negotiated with counsel, amended in drafts, and supported by findings that the agreement was fair and reasonable when executed and at the time enforcement was sought. He told the panel that the trial judge made detailed findings and that the record does not show an abuse of discretion.
The panel explored the practical consequences of reversing without resolution of remaining factual issues — for example, how fee awards, remedies for alleged breaches, and factual questions about insurance and retirement arrangements would be addressed. Counsel debated whether misconduct occurring after signing could affect the contract’s enforceability and whether equitable remedies such as specific enforcement were appropriate when the party seeking enforcement had allegedly not complied with promises.
The matter was submitted after argument.
Why it matters: The court’s decision will interpret DiMaggio first‑ and second‑look standards and could refine the circumstances under which a prenup is set aside or enforced, including how post‑execution conduct and remedies feed into the fairness analysis.