 |
 |
 |
|
| Future Students | Current Students | Alumni & Friends | Curriculum | Faculty | Centers | Clinic | Library | Career Planning | CLE | News | Centennial | |||
|
|
|
|
| Future Students | Current Students | Alumni & Friends | Curriculum | Faculty | Centers | Clinic | Library | Career Planning | CLE | News | Centennial | |||
Professor Nancy G. Maxwell
Washburn Law School
| "[W]hilst marriage is often termed by text writers and decisions of courts a civil contract -- generally to indicate that it must be founded upon the agreement of the parties, and does not require any religious ceremony for its solemnization -- it is something more than a mere contract. The consent of the parties is of course essential to its existence, but when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage." Maynard v. Hill, 125 U.S. 190, 210-211 (1888). |
The Uniform Premarital Agreement Act, Kan. Stat. Ann. § 23-801 et. seq. allows perspective spouses to enter into a written premarital contract, Kan. Stat. Ann. § 23-803, covering all their present and future property, income and earnings, Kan. Stat. Ann. § 23-802(b). The contract is effective upon marriage, Kan. Stat. Ann. § 23-802(b), and requires no consideration, Kan. Stat. Ann. § 23-803. The agreement may provide for the disposition of the property upon separation, divorce and death, including the elimination of spousal support, Kan. Stat. Ann. § 23-804(a). However, the parties' agreement may not adversely affect the right of a child to support, Kan. Stat. Ann. § 23-804(b). The agreement is unenforceable if it violates public policy, is unconscionable, a party involuntarily executes the agreement or a party inadequately discloses assets, Kan. Stat. Ann. § 23-807(a). Also, the court can override the parties' agreement to modify or eliminate spousal support if one of the spouses would become eligible for public assistance at the time of the separation or divorce, Kan. Stat. Ann. § 23-807(b). If the marriage is void, the agreement is enforceable "to the extent necessary to avoid an inequitable result," Kan. Stat. Ann. § 23-808. The parties may revoke or amend the agreement if the revocation or amendment is in writing, Kan. Stat. Ann. § 23-806.
The Uniform Premarital Agreement Act was enacted in 1988 and codifies the general principles of Kansas case law on prenuptial agreements. "[T]he general rule in this state [is] that persons competent to contract may execute an antenuptial agreement and determine for themselves what rights they will have in each other's property during their marriage and after its termination by death, and such a contract will be upheld where it is fairly and understandably made, is just and equitable and is not obtained by fraud or overreaching." Herman v. Goetz, 204 Kan. 91, 94, 460 P.2d 554, 557 (1969). The major difference is the Act can prevent a spouse from avoiding spousal support under the terms of the agreement if the other spouse becomes eligible for public assistance.
A change in Kansas statutory law in 1994 allows parties to waive "all rights of elective share, homestead and family allowance" in either in a premarital or postmarital agreement. Kan. Stat. Ann. § 59-6a213(d).
In the case of In re Marriage of Adams, 240 Kan. 315, 729 P.2d 1151 (1986), the wife attacked the premarital agreement at the time of the couple's divorce. According to the trial court's facts, the husband had discussed the antenuptial agreement with the wife and provided her and her attorney with a copy of a proposed agreement. The parties met with the wife's attorney, who presented the wife's objections to the agreement. One week before the wedding, the wife told her attorney to redraft the agreement "indicating that she objected to antenuptial agreements but would sign one."
Apparently this was the last time the parties discussed the agreement until an hour before the wedding, when the husband arrived at his mother's house, where the wife was dressing for the wedding. He asked her to accompany him to his office to sign the agreement. The husband told the wife he would not marry her unless she signed the agreement. The wife testified she was surprised by the husband's demand that she sign the agreement and she cried during the car ride to the attorney's office and back to her mother-in-law's home. She claimed she signed the agreement under duress and her husband agreed to change the agreement when they returned from their honeymoon. The husband, however, denied these facts. It wasn't until a week after the wedding that the wife's attorney forwarded her version of the agreement to the parties. Ten years later the husband filed for divorce, seeking enforcement of the antenuptial agreement. The agreement provided the wife with $24,000 a year in maintenance until either party died. In the divorce, the wife attacked the agreement alleging the agreement was not fairly and understandably made, was obtained by fraud and overreaching, and was against public policy.
The trial court upheld the agreement and the wife appealed. The supreme court found the evidence supported the trial court's finding that the agreement was understandable and fairly made because the wife had been familiar with the husband's business interests for a number of years and she testified she knew what she was signing. The court also rejected the wife's claim of fraud and overreaching. The court noted cases differed on whether a husband's request to sign an antenuptial agreement on the wedding day was overreaching. However, the supreme court stated these cases turn on individual facts. Since there was evidence to support the trial court's ruling, the supreme court could not set aside the lower court's ruling. Finally, the court stated the agreement did not violate public policy by promoting separation or divorce. The court noted the maintenance provision in the agreement was identical to the one proposed by the wife's attorney and followed the standard language and terms of many maintenance provisions in antenuptial agreements.
In Heiman v. Parrish, 262 Kan. 926, 942 P.2d 631 (1997), the Kansas Supreme Court determined that an engagement ring is a gift given in contemplation of marriage. "In the absence of a contrary expression of intent, it is logical that engagement rings should be considered, by their very nature, conditional gifts given in contemplation of marriage. Once it is established the ring is an engagement ring, it is a conditional gift." The Court also held that the ring must be returned to the donor after the marriage is called off, regardless of which party terminates the engagement. "We conclude that fault is ordinarily not relevant to the question of who should have ownership and possession of an engagement ring after the engagement is broken. Ordinarily the ring should be returned to the donor, regardless of fault. As in the Sommers case [246 Kan. 652, 792 P.2d 1005 (1990)], we recognize there may be 'extremely gross and rare situations' where fault might be appropriately considered. No such rare situation has been suggested to be involved herein."
Federal case law prohibits parties from waiving rights to pensions in a premarital agreement. Hurwitz v. Sher, 789 F. Supp, 134 (D.C.S.D.N.Y. 1992), aff'd 982 F.2d 778 (2nd Cir. 1992).
Under Kan. Stat. Ann.§ 23-101, the nature of the marriage relation is defined. In part it states that the "marriage contract is to be considered in law as a civil contract between two parties who are of the opposite sex.. . . The consent of the parties is essential. The marriage ceremony may be regarded either as a civil ceremony or as a religious sacrament, but the marriage relation shall only be entered into, maintained or abrogated as provided by law."
In addition, Kan. Stat. Ann § 23-104a subsection (a) states "Marriage may be validly solemnized and contracted in this state, after a license has been issued for the marriage, in the following manner: By the mutual declarations of the two parties to be joined in marriage, made before an authorized officiating person and in the presence of at least two competent witnesses over 18 years of age, other than the officiating person, that they take each other as husband and wife."
The last two legislative sessions have had bills proposing another form of marriage, a covenant marriage. The bill in the 1997 session was SB312; the 1998 bill is H2839. Neither bill has been enacted into law, but at least one state, Louisiana, has passed a covenant marriage bill. Under the most recent legislative proposal, H2839 [Appendix A], the parties entering into covenant marriages would sign the following "declaration of intent": "We do solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife for so long as they both may live. We have chosen each other carefully and disclosed to one another everything which could adversely affect the decision to enter into this marriage. We have received premarital counseling on the nature, purposes and responsibilities of marriage. We have read the covenant marriage act, and we understand that a covenant marriage is for life. If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling. With full knowledge of what this commitment means, we do hereby declare that our marriage will be bound by Kansas law on covenant marriages and we promise to love, honor and care for one another as husband and wife." Covenant marriages can be terminated by divorce under very limited terms, such as adultery, conviction of a serious felony, abandonment for one year, abuse of a spouse or child, or living separate and apart for two years. In addition, the court can grant a separate maintenance decree of a covenant marriage for all the above grounds, plus "habitual intemperance" or "excesses, cruel treatment, or outrages" if these conditions are "of such a nature as to render their living together insupportable."
Under Kan. Stat. Ann. § 23-201 (a), a person's property owned prior to marriage and any property inherited following the marriage "shall remain the person's sole and separate property, notwithstanding the marriage, and not subject to the disposal of the person's spouse or liable for the spouse's debts." On the other hand, subsection (b) states that once a spouse has filed an action for divorce, separate maintenance or annulment, then all property owned by the married persons becomes marital property and "[e]ach spouse has a common ownership in marital property which vests at the time of commencement of such action, the extent of the vested interest to be determined and finalized by the court . . .."
Notwithstanding this provision, Kan. Stat. Ann. § 23-207 provides that "[n]othing in this act contained shall invalidate any marriage settlement or contract now made or to be hereafter made."
"The general rule in this state is that contracts, made . . . after marriage, the purpose of which is to fix property rights between a husband and wife, are to be liberally interpreted to carry out the intentions of the makers, and to uphold such contracts where they are fairly and understandably made, are just and equitable in their provisions and are not obtained by fraud or overreaching. Generally speaking these contracts are not against public policy; although a different rule obtains where the terms of the contact encourage a separation or divorce." Cooper v. Cooper, 195 Kan. 174, 403 P.2d 984 (1965).
A contract entered into by the parties after the marriage must be in writing and requires consideration. In Bremer v. Bremer, 187 Kan. 225, 356 P.2d 672 (1960), the husband asked the wife to sign a postnuptial agreement in which she agreed to drop her petition for divorce and resume '"their marital relationship forthwith" and share any property that was acquired in the future by her husband's salary with several other family members. This agreement was struck down as lacking in consideration on the husband's part because he only agreed "to reduce or stop his drinking and be a good husband and father." The court found this to be insufficient consideration; "[h]e had a duty in this regard without the agreement and certainly the wife did not obtain much to justify the giving up of valuable property rights. It might be added that the wife testified that the husband gave evidence almost immediately of having no intention of mending his ways after the agreement was signed."
All the standard contract principles apply to agreements that marital partners enter into during their marriage. Therefore, the written agreement may be revoked at any time, provided the revocation is in writing, Campbell v. McBurney, 201 Kan. 26, 439 P.2d 133 (1968), the parties must have the requisite mental capacity to contract, Crosby v. Crosby, 188 Kan. 274, 362 P.2d 2 (1961), and the rules of construction, such as the plain meaning rule and the parol evidence rule, apply in interpreting the terms of the agreements.
Kansas Statutes Annotated § 60-1610 (b)(3) covers "separation agreements." It provides that "[i]f the parties have entered into a separation agreement which the court finds to be valid, just and equitable, the agreement shall be incorporated into the decree. The provisions of the agreement on all matters settled by it shall be confirmed in the decree except that any provisions for the custody, support or education of the minor children shall be subject to the control of the court in accordance with all other provisions of this article. Matters settled by an agreement incorporated in the decree, other than matters pertaining to the custody, support or education of the minor children, shall not be subject to subsequent modification by the court except: (A) as proscribed by the agreement or (B) as subsequently consented to by the parties."
Because Kansas allows marital partners to contract without contemplating separation and divorce, a contract may be binding (even if the parties never divorce and, in fact, reconcile) if the contract does not specify that its terms are only enforceable upon the court accepting the contract and incorporating it into the decree. See In re Estate of Loughmiller, 229 Kan. 584, 629 P.2d 156 (1981). However, if the agreement as to property division was an oral agreement, then the agreement must be incorporated into the journal entry of divorce to be valid and effective. See In re Marriage of Wilson, 13 Kan. App. 2d 291, 768 P.2d 835 (1989), where the parties' oral agreement, which they set out in testimony at the divorce hearing, was not binding because the husband died before the journal entry of divorce, incorporating their agreement, had been signed by the judge.
Parties cannot agree that one of them will file for divorce and the other will not defend the divorce because the contract is conducive to divorce and therefore against public policy. See Cooper v. Cooper, 195 Kan. 174, 403 P.2d 984 (1965).
Jarvis v. Jarvis, 12 Kan. App. 2d 799, 758 P.2d 244 (1988) concerned an impermissible contract clause involving the hiring of particular attorney in a pending divorce action. In this case the husband, who was an attorney, and the wife signed an agreement in 1982 in which the wife agreed she would not hire a specifically named attorney as an attorney for her or the children in any action against her husband resulting from their pending divorce. The wife later filed an action to set aside the agreement. The court of appeals found the agreement violated discipline rule 2-108 of the Code of Professional Responsibility and section 5.6 of the Model Rules of Professional Conduct. Both of these provisions forbid attorneys from signing or participating in agreements that restrict an attorney's right to practice law. Consequently the agreement was struck down as void and unenforceable.
The terms of the separation agreement concerning maintenance control, regardless of the subsequent change in circumstances. An example of this principle is Bair v. Bair, 242 Kan. 629, 750 P.2d 994 (1988). In a proceeding to hold the ex-husband in contempt for failing to pay alimony, the ex-husband requested court modification of the alimony provision of the separation agreement. He argued his severe financial reverses made it impossible for him to comply with the terms of the agreement. The court refused to modify the agreement because section 60-1610(b)(3) prohibits the court from modifying alimony provisions in a separation agreement unless the terms of the agreement give the court the power to modify or the parties agree to the modification. The court also reaffirmed the ex-wife's right to use whatever means necessary to collect alimony arrearage judgments. In addition, the court held the most recent contempt citation superseded a citation issued several years earlier.
One case, however, interpreted the terms of the agreement as granting authority for the court to modify the maintenance provision. In Baird v. Baird, 209 Kan. 604, 498 P.2d 83 (1972), the parties had signed an agreement in which the husband agreed to pay the wife a monthly sum as alimony until she remarried or died "as provided by the alimony laws of the State of Kansas." Two years later the ex-husband filed a motion to modify the alimony provision because his health had deteriorated to the point that he could no longer work and his monthly income was only $73.00 more than his alimony payment. The Kansas Supreme Court interpreted the language "as provided by the alimony laws of the State of Kansas" as a reference to the alimony statute that grants the court the power to reduce court-ordered alimony awards. The court stated that under this statute, "a court has the statutory power to modify the amounts or other conditions for the payment of any portion of the alimony originally awarded that have not already become due. The phrase 'as provided by the alimony laws of the State of Kansas' must therefore refer to the general provision for alimony which consists chiefly of the power of the court to modify the amounts or other conditions for the payment of alimony." Consequently, using these words in an agreement will grant the court the power to reduce the maintenance award upon a showing of a change of circumstances.
If a contract provision for the payment of maintenance does not state that remarriage of the person receiving the alimony will terminate the maintenance, then remarriage does not affect the obligation to pay maintenance under the agreement. See Rasure v. Wright, 1 Kan. App.2d 699, 573 P.2d 1103 (1977), In re Marriage of Bowers, 23 Kan. App. 2d 621, 933 P.2d 176 (1997).
Agreements entered into in contemplation of divorce that are incorporated in the decree become final as to the division of the property once the time for appeal has run. For example, in Drummond v. Drummond, 209 Kan. 86, 495 P.2d 994 (1972), the parties entered into an agreement in which the husband received almost all of the property owned by the parties during the marriage and the wife agreed to receive a commensurate alimony award, to be paid monthly until her death or remarriage. It was the intention of the parties that the alimony be paid in lieu of the wife receiving the marital property. Unfortunately the wife remarried and even though her ex-husband agreed that the alimony was really in the nature of a property settlement, the court could not give her any more property after the divorce was final.
The property settlement agreement in In re Marriage of Arndt, 239 Kan. 355, 719 P.2d 1236 (1986), allowed the wife to remain in the family home "until such time as she remarries or the parties sell the property by mutual agreement, or until she moves out, whichever is the sooner." The husband brought an action to force the sale of the house because the wife was cohabiting in the house with her boyfriend, who paid half of the utilities and groceries and $200.00 in rent. The court held the terms of the agreement controlled. Since there was no "remarriage", the trial court was powerless to force the sale of the house. The court also rejected the ex-husband's argument that cohabitation was against public policy and the court cited the Fleming v. Fleming case, 221 Kan. 290, 559 P.2d 329 (1977), as precedent. In the Fleming case the ex-husband requested termination of his former wife's alimony because he claimed she was cohabiting with her paramour. The ex-husband analogize this situation with a remarriage. He relied upon Herzmark v. Herzmark, 199 Kan. 48, 427 P.2d 465 (1967), which stated "[i]t is repugnant to a sense of justice for one man to support the wife of another who has recently assumed the legal obligations for her support." The Fleming court rejected the ex-husband's argument and held that since the paramour had no legal obligation of support, the ex-wife was not receiving support from two men.
The court of appeals also examined the issue of cohabitation in In re Marriage of Wessling, 12 Kan. App. 2d 428, 747 P.2d 187 (1987). In this case the property settlement agreement allowed the ex-husband to reduce the amount of maintenance he paid to his ex-wife upon her "continuous or continual cohabitation with an unrelated male." When the ex-wife began a sexual relationship with another man, the ex-husband argued she was "continuously or continually" cohabiting with an unrelated male because she periodically spent the night with the male. The court rejected this interpretation of the agreement, finding the word "cohabitation" meant "[t]o live together as husband and wife" including the "mutual assumption of those marital rights, duties and obligations which are usually manifested by married people." The court held there was no cohabitation in this case because the parties "have not held themselves out as husband and wife, and they have no plans to marry. They have never maintained a home together and have kept separate residences. They have not shared living expenses. They have not jointly owned any property. In short, they have never 'live[d] together as husband and wife'." Although the court of appeals cites authority that requires the parties in the cohabitation to "live together as husband and wife", the court fails to distinguish this definition of cohabitation from common law marriage.
"We conclude that the judicial barriers that may stand in the way of a policy based on the fulfillment of the reasonable expectations of the parties to a nonmarital relationship should be removed. As we have explained, the courts now hold that express agreements will be enforced unless they rest on unlawful meretricious consideration."
"The courts may inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract or implied agreement of partnership or joint venture or some other tacit understanding between the parties."
"The courts may, when appropriate, employ principles of constructive trust or resulting trust."
"Finally, a nonmarital partner may recover in quantum meruit for the reasonable value of household services rendered less the reasonable value of support received if he can show that he rendered services with the expectation of monetary reward."
"[T]he trial court did have authority, in the exercise of its inherent power to do equity, to make an equitable division of the property . . .."
In the case of In re Marriage of Thomas, 16 Kan. App.2d 518, 825 P.2d 1163 (1992), the Court of Appeals interpreted language in Eaton v. Johnston (which seemed to say that property could be divided according to partnership law), as inapplicable to a situation involving unmarried cohabitants.
"The Eaton decision stands for the proposition that the trial court is authorized to make an equitable division of the property of the parties. It does not stand for the proposition that the trial court is required to apply partnership principles in dividing that property.
We hold in line with the Eaton decision that, under the facts shown, the trial court had the authority to make an equitable division of the property jointly accumulated by the parties or acquired by either with the intent that each should have an interest therein. We find no merit whatsoever in [the] argument that the trial court was bound by the UPA [Uniform Partnership Act] or was required to apply partnership principles in dividing the property."
"[T]his case is remanded for further hearing and division of such property as may have been jointly acquired by the parties or acquired by either with the intent that both should have an interest therein during the period they lived together . . . all in such manner as the court in its discretion may find to be just and equitable." Eaton v. Johnston, 235 Kan. 323, 681 P.2d 606 (1984).
In Ellis v. Berry, 19 Kan. App.2d 105, 867 P.2d 1063 (1993), the Kansas Court of Appeals cites the Eaton v. Johnston case, stating that a "trial court may, in its discretion, exercise its equitable authority to effect a just division of property." In addition, the court defines express and implied contract claims, as well as other equitable claims. The court notes, however, that the statute of limitations on unwritten express or implied contracts is three years.
Although the United States Supreme Court states in Maynard v. Hill that the marriage contract may not be "modified, restricted, or enlarged" it is obvious that modern family law has allowed substantial deviation from the traditional notions of what the marriage contract means. On one end of the spectrum, the Kansas legislature is considering two forms of marriage contracts in Kansas--the present statutory marriage and the much more restrictive covenant marriage. On the other end of the spectrum is the legislation on premarital contracts as well as the court's recognition of contracts entered into by nonmarital cohabitants, both of which conceivably allow parties to contract around the legal consequences of being married. Because of the numerous "variations on a theme" called marriage, Kansas law concerning marital contracts can truly let you "have it your way".