By Jonathan Fields, Esq.
An operating agreement is a document prepared for limited liability companies (LLCs). A spousal consent operating agreement is designed for the spouse of an LLC member to sign to agree to the terms of the agreement even though he/she is not a member of the company.
One of the main purposes of a spousal consent operating agreement is to prevent the spouse of the LLC member from trying to go against the terms set forth in the agreement. Once it is triggered, the consent provision generally requires the spouse of the divorcing owner to promptly sell or waive his/her interest in the business to the company on prescribed terms.
The issue: will this hold up in a Massachusetts divorce?
The answer: if you want this to hold up in a divorce, the terms have to be part of a validly drawn prenuptial or postnuptial agreement. For these documents, each party needs their own attorney because the documents have to conform to the complex and evolving rules regarding prenuptial and postnuptial agreements. Otherwise, without such a document, the Probate and Family Court in Massachusetts is not bound to uphold them but, rather, will look to the law of equitable distribution in determining whether such an agreement is consistent.