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March 17, 2026 Get Citation Alerts Download PDF Add Note

Samuel Forman v. Yulika E. Forman.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 24-P-0930

• Precedential Status: Non-Precedential

• Opinion

• Authorities (8)

• Cited By (0)

• Summaries (0)

• Similar Cases (6.2K)

• PDF

Combined Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-930

SAMUEL FORMAN

vs.

YULIKA E. FORMAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial that proceeded in multiple stages, a

judge of the Probate and Family Court concluded that an

antenuptial agreement (agreement) executed by Yulika E. Forman

(wife) and Samuel Forman (husband) was fair and reasonable when

it was signed and that, despite the husband's substantial

breaches of his obligations under the agreement, it was

enforceable at the time of the divorce.1 After the second phase

of the trial, the judge ordered a division of assets pursuant to

the agreement and a Memorandum of Understanding for Partial

Judgment (MOU) submitted by the parties in which they agreed to

1A partial judgment reflecting that conclusion entered on
May 4, 2023.
the disposition of the marital home and certain child-related

expenses.2 Thereafter, a final judgment of divorce nisi was

entered by a different judge.3 On appeal, the wife argues, among

other things, that the agreement was rendered unenforceable due

to the husband's breaches and therefore the judge should have

fashioned an appropriate equitable remedy, including alimony, in

accordance with G. L. c. 208, §§ 34, 48-55. For the reasons

discussed below, we discern no error or abuse of discretion and

affirm the judgment.

Background. The parties were married on October 10, 2004.

At that time, the wife was thirty-four years old, and the

husband was fifty-one years old. This was the wife's first

marriage and the husband's second marriage.4 The husband had

significantly more assets than the wife and proposed that the

two execute an agreement to protect those assets in the event

2 The MOU was incorporated into a second partial judgment
reflecting the division of assets entered on July 27, 2023.

3 The final divorce judgment entered on June 10, 2024. The
final judgment incorporated a third partial judgment relating to
a child-related issue, which is not challenged on appeal.

4 Three children were born of the marriage, twins, who were
sixteen years old at the time of the divorce, and one younger
child, who was thirteen.

2
the parties divorced.5 The wife agreed to do so, and the

parties' wedding was postponed while the terms of the agreement

were negotiated. Both parties were represented by counsel and

after exchanging several drafts, some of which included changes

favorable to the wife, the parties finalized the agreement and

signed it about a week before they were married. As relevant

here, the agreement provides that in the event of divorce

(1) neither party shall receive alimony; (2) the parties shall

retain their separate property; and (3) any jointly held

property shall be divided equally. The agreement further

provided that (1) the husband shall make contributions to a

joint account (contribution account) of $6,000 per month during

the first twenty years of the marriage;6 (2) the contribution

account shall constitute joint property for purposes of property

division; and (3) upon divorce, the wife shall receive the

greater of (a) fifty percent of the contribution account balance

(including market gains/losses), or (b) the amount set forth in

a table attached to the agreement as the minimum payment due to

the wife based on the duration of the parties' marriage. At the

5 At the time the agreement was executed, the husband had
assets totaling approximately $15 million and the wife had
assets totaling less than $50,000.

6 The contribution account was established as an investment
account at Charles Schwab and is sometimes referred to by the
parties and the judge as "the Schwab 8934 account."

3
time of the divorce the parties had been married for fifteen

years and the minimum payment specified by the table for a

marriage of that duration was $820,000.7 The contribution

account was not to be used as an operational account and

required both parties' written consent for the funds to be

withdrawn.

The husband filed a complaint for divorce in November 2018,

which was amended in April 2019. The amended complaint alleged

an irretrievable breakdown and requested an equitable division

of assets pursuant to the parties' prenuptial agreement. The

wife filed an answer and counterclaim in which she sought an

equitable division of the marital estate pursuant to G. L.

c. 208, § 34.

At the time of trial, the husband, who is a physician, was

providing consulting services as an expert in tort litigation

through his consulting business. The wife, who has a Ph.D. in

child development from Tufts University, was operating a sole

proprietorship, which provides consulting services to parents of

children with disabilities. She also had assumed primary

responsibility for the children throughout the marriage and at

the time of the trial.

7 See Section II(B)(3)(b) of the agreement.

4
The validity of the agreement at the time it was signed and

at the time of the divorce were contested issues at trial. As

previously noted, the judge determined that the agreement was

fair and reasonable at the time of its execution, was

conscionable at the time of the divorce, and therefore was

enforceable. In reaching her conclusion that the agreement was

enforceable, the judge noted that, "[i]n total, the Wife will

likely leave the marriage with at least $3 million in assets."

The judge acknowledged that this amount is likely less than the

wife may have received under G. L. c. 208, § 34, but concluded

that because the amount the wife will receive under the

agreement "will enable her to have sufficient property to

support herself," she "has not been stripped of substantially

all of her marital interests." The judge also noted that the

agreement provided for specific performance in the event of a

breach by either party during the course of the marriage. The

judge found that both the husband and wife had breached the

agreement by making unauthorized withdrawals from the

contribution account: the husband made several withdrawals

totaling $283,148 whereas the wife made a single withdrawal in

the amount of $7,983. In addition, the husband failed to make

5
many of the required $6,000 monthly deposits to the account.8

There being insufficient evidence to determine the number of

missed payments presented at the first phase of the trial, the

judge requested additional evidence to be presented at the

second phase of the trial so that "specific performance of the

[agreement] can be effectuated." Citing to Austin v. Austin,

445 Mass. 601, 605 n.7 (2005), the judge made clear that she had

the authority to fashion an equitable remedy "regardless of

whether the agreement itself was valid either at its execution

or at the time of the divorce" and that she would "determine the

most equitable remedy to the above-referenced breaches following

the second portion of the bifurcated trial."

Thereafter, following the second phase of the trial, the

judge again concluded the agreement was enforceable even though

the husband had materially and substantially breached the

agreement by (1) failing to make all the required $6,000 monthly

deposits to the contribution account, and (2) making numerous

unauthorized withdrawals from the account. The judge found

that, had the husband not breached his obligations under the

agreement, the value of the contribution account in 2020 would

have been $1,564,313. In so finding, the judge relied on the

8 At trial, the husband acknowledged that he stopped making
the deposits beginning in 2011.

6
opinion offered by the husband's financial expert and rejected

the opinion of the wife's financial expert, who had opined that

the balance would have been $2,163,810.9 The judge then awarded

the wife $820,000 as per the agreement because that amount was

greater than one-half of the contribution account's hypothetical

value according to the husband's expert.10 As set forth in the

MOU, the wife also received one-half of the value of the marital

home, which was valued at approximately $4 million. In

accordance with the terms of the agreement, the wife was not

awarded alimony. In regard to the husband's breaches of the

agreement, the judge ruled that because the breaches did not

ultimately result in any change in the amount due to the wife,

the "appropriate and fair remedy" was to effectuate the terms of

the agreement.

Discussion. "For an antenuptial agreement to be

enforceable, it must be both (1) fair and reasonable at the time

of execution (the 'first look'), and (2) conscionable at the

time of enforcement (the 'second look')." Rudnick v. Rudnick,

9 The experts also offered opinions as to what the account
balance would have been in 2023, if the funds had remained in
the account and continued to appreciate in their existing
investment allocation: $1,993,330 (per the husband's expert),
and $3,802,499 (per the wife's expert).

10The sum was reduced to $715,000 to account for an advance
distribution to the wife during the pendency of the divorce.

7
102 Mass. App. Ct. 467, 470 (2023). The wife does not challenge

the judge's conclusion that the agreement was fair and

reasonable at the time it was signed.11 She contends that the

judge abused her discretion in determining that the agreement

was enforceable at the time of the divorce given that the judge

found the husband had consistently breached his obligations

under the agreement. According to the wife, because the

agreement was unconscionable upon a "second look" at the time of

divorce, she was entitled to an equitable division of all

marital assets pursuant to G. L. c. 208, § 34, and alimony under

§§ 48-55. See Rudnick, supra.

As the wife correctly contends, where an agreement is valid

at the time of execution, a judge must still take a so-called

second look at its provisions at the time it is enforced to

ensure that "the agreement has the same vitality at the time of

the divorce that the parties intended at the time of execution."

DeMatteo v. DeMatteo, 436 Mass. 18, 37 (2002), citing MacFarlane

v. Rich, 132 N.H. 608, 616-617 (1989). After the second look,

the agreement must be enforced

"unless circumstances such as the mental or physical
deterioration of the contesting party, or erosion of
promised support by inflation, would lead the court to
conclude that the agreement was not conscionable and that
its 'enforcement . . . would leave the contesting spouse

11At oral argument, the wife made clear she was challenging
the agreement's conscionability at the time of enforcement.

8
without sufficient property, maintenance, or appropriate
employment to support herself."

Austin, 445 Mass. at 607, quoting DeMatteo, 436 Mass. at 37.

Here there was no evidence of any physical or mental

deterioration of the wife or any significant change in

circumstances such that enforcement of the agreement would leave

the wife unable to support herself. On the contrary, the wife

was in good health and although she was not earning an amount

equal (or even close) to the husband at the time of the divorce,

she was operating her own consulting company. In addition,

given that the wife will receive approximately $2 million from

her share of the marital home, additional personal property, and

the sum of $820,000, the judge properly concluded that the wife

will leave the marriage with sufficient assets (approximately $3

million) to support herself. While we acknowledge that the

wife's assets upon the divorce are far less than the husband's,

this disparity has no bearing on the question of

conscionability. As the court noted in DeMatteo, a valid

antenuptial agreement will not be rendered unenforceable "merely

because its enforcement results in property division or an award

of support that a judge might not order under G. L. c. 208,

§ 34, or because it is one sided." DeMatteo, 436 Mass. at 36.

Thus, while the wife's displeasure with the result is

9
understandable, the judge did not err in concluding that the

agreement is enforceable.

Nor did the judge err by concluding that the husband's

numerous breaches of the agreement did not render it

unconscionable. To begin with, we note that the judge fully

recognized that she had the authority to depart from the

agreement due to the parties' breaches in connection with their

treatment of the contribution account. As the judge explained,

again quoting from Austin, 445 Mass at 605 n.7, "where a party

breaches an antenuptial agreement, 'the judge [has] the

equitable power to design a remedy, such as adjusting the

distribution of assets, regardless of whether the agreement

itself was valid either at its execution or at the time of the

divorce.'" The judge considered and rejected the wife's

argument that the husband's breaches were so egregious so as to

require her to ignore the terms of the agreement. As discussed,

the judge concluded that the husband's unauthorized withdrawals

from the contribution account and his failure to make the

required monthly deposits into the account were inconsequential

because, had those breaches not occurred, fifty percent of the

value of the "recreated" account did not exceed the minimum

($820,000) owed to the wife in the event of a divorce after

fifteen years of marriage. The judge explained there was no

10
reason to fashion an equitable remedy instead of effectuating

the terms of the agreement because, "ultimately," the breaches

"did not result in [the wife's] portion of the recreated

[contribution account] balance exceeding $820,000 . . . [and, as

a result,] the appropriate and fair remedy for the parties'

breaches of the [agreement] is accomplished by effectuating" the

terms of the agreement.

Rudnick, 102 Mass. App. Ct. at 470-473, and Kelcourse v.

Kelcourse, 87 Mass. App. Ct. 33, 35-36 (2015), two cases on

which the wife relies, do not compel a different result. In

Rudnick, the husband's breaches of the antenuptial agreement

effectively stripped the wife, who was eighty-six years old at

the time of the divorce and unable to earn income, of

substantially all marital assets. Rudnick, supra at 470-473.

In Kelcourse, the antenuptial agreement was deemed

unconscionable where the wife was left with negative assets due

to a significant drop in the value of the marital home.

Kelcourse, supra at 35-36. Here, by contrast, the husband's

breaches did not result in leaving the wife without sufficient

assets to support herself.

The wife's remaining arguments require little discussion.

Contrary to the wife's assertion, the judge's ruling regarding

the hypothetical balance of the contribution account was not

11
based on speculation. Rather, it was based on the calculations

provided by the husband's expert which the judge found to be

"sound and credible." The judge was entitled to credit the

analysis of the husband's expert and reject that of the wife's

expert, which she found to be "unhelpful."12 See Bernier v.

Bernier, 449 Mass. 774, 785 (2007), quoting Fechtor v. Fechtor,

26 Mass. App. Ct. 859, 863 (1989) ("When the opinions of

valuation experts differ, a judge may 'accept one reasonable

opinion and reject the other'").

Lastly, the wife asserts that the judge erroneously

determined that the proper valuation date for the contribution

account was the date of the termination of the marriage, April

2, 2020, rather than the date of the actual divorce in 2023. In

support of this assertion, the wife relies on Obara v.

12 More specifically, the judge found the husband's expert
"completed a logical recreation of what the Schwab 8934 account
balance would be as of March 31, 2020 with the proper deposits
and without the improper withdrawals by applying Husband's
actual investment allocation over time since 2004." "This
investment strategy included only an allocation of an average of
only approximately 17% into S&P 500 funds." The judge further
said:
"[O]n the other hand, [the wife's expert] assumed in his
recreation of the Schwab 8934 account that all of the funds
in the account would be invested in the S&P 500. This
simply was not the investment allocation Husband chose, nor
was Husband required under the Antenuptial Agreement to
choose to invest all the funds in the S&P 500. It is
therefore not a reasonable assumption in determining what
the account balance would have been as of 2020."

12
Ghoreishi, 103 Mass. App. Ct. 549, 552 (2023), a case in which

we held that property subject to equitable division under G. L.

c. 208, § 34, is typically valued as of date of division, i.e.,

time of trial. However, this case involves enforcement of an

antenuptial agreement and not an equitable division of property

under G. L. c. 208, § 34. Here, once the judge determined that

the agreement was enforceable and that specific performance of

its terms was appropriate, she did not err in choosing the

valuation date specified in the agreement. At that point, the

terms of the agreement were controlling and, as defined in the

agreement, joint marital assets were to be valued "at the time

of the Termination" of the marriage. The judge properly

concluded that she had no discretion to deviate from the date

set forth in the agreement, which she described as "clear and

unambiguous." See Korff v. Korff, 64 Mass. App. Ct. 94, 94

(2005) ("Once it was determined that an antenuptial agreement

was valid, it was improper for the Probate and Family Court

13
judge to alter its alimony provisions").

Judgment affirmed.

By the Court (Vuono, Shin &
Smyth, JJ.13),

Clerk

Entered: March 17, 2026.

13 The panelists are listed in order of seniority.

14