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Bar on transfer of marital home may not be enforceable

Dear Clients and Friends,


A recent case from the Massachusetts Appeals Court underscores that while it’s possible to incorporate a lot of things into a separation agreement, courts do not take kindly to provisions that unreasonably tie up property forever.


In the case in question, husband Omar Bonilla and wife Rose Najera bought a home together after they got married. They lived in the home for a decade until Bonilla moved out.

Eventually, with Najera still living in the home, the couple entered into a formal separation agreement.


In many cases, the separation agreement — which lays out how spouses will handle such issues as property division, debt, who lives in the marital home, child custody, and child support until the divorce is final — is incorporated directly into the final divorce judgment. But in this case, the couple’s separation agreement survived as an independent contract. It also stated that the couple’s house could be sold or transferred only by their “mutual agreement,” made parties equally responsible for expenses, and made the agreement binding on both parties’ estates.


Five years after the divorce, Bonilla sought to partition (divide up) the property so it could be sold, with both he and Najera splitting the proceeds. A Probate & Family Court judge ruled that because of the separation agreement, the home couldn’t be sold without Najera’s consent. But the Appeals Court reversed the judgment.


First, the court said that co-owners of a piece of property may restrict themselves from asserting a right to partition it, but such an agreement has to be reasonable. Here, the court said, the restriction was unreasonable because it had no potential endpoint and because law and public policy disfavor agreements that tie up property in perpetuity.


If you’re pondering separation and you’re wondering about more specific limitations on what it can or can’t do, call us to see if we can be of help at a price that works for you.


Best,

Ron

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