§ 4.02 The Traditional Rule of Nonenforceability

• Jurisdiction: United States
• Publication year: 2021

§ 4.02 The Traditional Rule of Nonenforceability

Marital agreements that address the respective inheritance rights of each spouse have long been accepted by American courts. Such agreements are generally executed in order to clarify the respective inheritance rights of a spouse, children from a prior marriage, and possibly other relatives or friends. Although certain equitable restrictions have been applied to these inheritance agreements, they have generally been considered appropriate and not in violation of public policy.²

In contrast, marital agreements purporting to address the financial consequences of divorce traditionally were not enforced.³ The justification for this traditional rule has never been clear. Some courts apparently believed that such "divorce agreements"⁴ encouraged divorce. This belief apparently arose because divorce agreements frequently limited the rights of the wife. If the terms were enforced, the courts reasoned, husbands would have an economic incentive to divorce.⁵ The "incentive" apparently was the ability to terminate, via divorce, the spousal obligation of support.

Another possible justification for the traditional rule of nonenforceability of divorce agreements is that their terms frequently were unfair. Almost every divorce agreement involved in appellate cases attempted to limit the rights of the less sophisticated spouse (frequently the wife).⁶ Courts might have concluded that a woman was not sufficiently sophisticated to negotiate a fair contract with a man.⁷

Certain recent societal changes, however, have undermined the traditional view. The acceptance of equitable distribution divorce property division systems has made the economic consequences of divorce less clear, since some or all of the parties' property may be divided. In addition, the increasing divorce rate⁸ has made prospective spouses more aware of the possibility of divorce. Because the likelihood of divorce has increased and the financial consequences of divorce have become less clear, more spouses have recently attempted to clarify, in a marital agreement, the financial consequences of divorce.

Judges have recently become more willing to enforce divorce agreements.⁹ On one hand, the large increase in the percentage of women who work outside the home, plus the emergence of feminism and "equal rights" ideas, have made courts less inclined to believe that women needed to be protected. In addition, the unfairness of not permitting people to structure their own intimate relationship became more evident. Courts might also have been concerned that the traditional rule of nonenforceability of divorce agreements, coupled with the equitable distribution divorce property system, might discourage many couples from marrying.

In any event, although some courts affirmed the traditional rule even into the 1980's,¹⁰ many courts and legislatures have abandoned the rule of nonenforceability.¹¹ All divorce agreements are not enforceable in these states, however; a number of equitable restrictions apply.

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Notes:

^[2] See generally: 2 Lindey, Separation Agreements and Antenuptial Contracts (1982); Clark, "Antenuptial Contracts," 50 Columbia L. Rev. 141 (1979); Klarman, "Marital Agreements in Contemplation of Divorce," 10 Mich. L. Rev. 397 (1977).

^[3] See generally, Weitzman, "Legal Regulation of Marriage: Tradition and Change," 62 Calif. L. Rev. 1169 (1974). This reference is to agreements signed either before marriage or after marriage before the parties decide to divorce. Separation agreements, agreements signed after the parties have decided to divorce, were accepted by courts. See generally, Sharp, "Divorce and the Third Party," 59 N.C. L. Rev. 819 (1981).

^[4] For the remainder of this chapter the terms "marital agreement" or "divorce agreement" are used to refer only to agreements regarding the consequences of divorce signed either before marriage or after the wedding but before the spouses decide to separate.

^[5] Kansas: Ranney v. Ranney, 219 Kan. 428, 548 P.2d 734 (1976); Neddo v. Neddo, 56 Kan. 507, 441 Pac. 1, 2 (1896).

Tennessee: Crouch v. Crouch, 53 Tenn. App. 594, 385 S.W.2d 288 (1964).
Wisconsin: Fricke v. Fricke, 257 Wis. 124, 129, 42 N.W.2d 500, 502 (1950).

^[6] For cases involving contracts in which the wife waived certain property rights, see:

Alabama: Barnhill v. Barnhill, 386 So.2d 749 (Ala. Civ. App. 1980) (alimony and property).
Colorado: In re Marriage of Ingels, 42 Colo. App. 245, 596 P.2d 1211 (1979) (property).
Connecticut: Parniawski v. Parniawski, 33 Conn. Supp. 44, 359 A.2d 719 (1976) (alimony and property).
District of Columbia: Norris v. Norris, 419 A.2d 982 (D.C. 1980) (alimony and property).
Florida: Posner v. Posner, 233 So.2d 381 (1970), clarified 257 So.2d 530 (Fla. 1972).
Georgia: Scherer v. Scherer, 249 Ga. 635, 292 S.E.2d 662 (1982) (property).
Illinois: Eule v. Eule, 24 Ill. App.3d 83, 320 N.E.2d 506 (1974) (alimony).
Iowa: In re Marriage of Winegard, 278 N.W.2d 505 (Iowa 1979) (alimony).
Kansas: Matlock v. Matlock, 223 Kan. 679, 576 P.2d 629 (1978) (alimony).
Louisiana: Holliday v. Holliday, 358 So.2d 618 (La. 1978) (alimony).
Minnesota: Hafner v. Hafner, 295 N.W.2d 567 (Minn. 1980) (property).
Missouri: Ferry v. Ferry. 586 S.W.2d 782 (Mo. App. 1979) (alimony and property).
Nevada: Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978) (property).
Oklahoma: Freeman v. Freeman, 565 P.2d 365 (Okla. 1977) (property).
South Dakota: Connolly v. Connolly, 270, N.W.2d 44 (S.D. 1978) (alimony and

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