§ 4.14 Miscellaneous Marriage Contract Issues

JurisdictionUnited States
Publication year2021

§ 4.14 Miscellaneous Marriage Contract Issues

[1]—Contingent Marital Rights

Some cases involve contracts where a spouse's marital rights are contingent upon behavior after the agreement is signed. For example, a Pennsylvania court considered an agreement whereby the wife was to lose most of her marital property rights if she was sexually unfaithful. She did have another sexual partner and the court enforced the agreement.500

In contrast, a California case did not enforce an agreement whereby the parties had agreed that if one party was sexually unfaithful, that party would owe the other $50,000 as liquidated damages.501

In another case, in connection with a reconciliation, one spouse agreed to forfeit his rights in certain property if he used illegal drugs. The court did not enforce this agreement.502

A Virginia case involved an agreement where the husband promised to pay a certain amount of post-divorce alimony unless the wife was guilty of adultery. The court enforced the agreement.503

In contrast, a New York case involved a marriage contract whereby the wife was to lose her marital property rights if she "failed to fulfill her marriage vows or obligations." The court concluded that this provision was both vague and possibly in violation of public policy, and did not enforce it.504

Some contracts provide that the spouses' respective rights at divorce depend upon which spouse files for divorce. The enforceability of these agreements is discussed above.505

Other contracts state that the spouses' rights depend upon the length of the marriage. In most instances, the types of property included in the marital estate gradually increase, based on the duration of marriage at divorce. Most courts enforce these provisions.506

[2]—Agreements Regarding Attorneys' Fees in Divorce

Some courts have held that a waiver of the right to receive court-awarded fees in connection with a divorce is against public policy and should not be enforced.507 Others seem willing to enforce such waivers.508

A Colorado court considered a provision whereby the spouses waived their respective rights to receive court-awarded attorneys' fees in connection with a divorce. The court concluded that such a waiver should not be enforced if it would be unconscionable.509

An Illinois court has ruled that a waiver of the right to attorney's fees should not be enforced if it would be unfair.510 Another Illinois court has ruled that a fee waiver should not be enforced as applied to legal issues relating to the parties' children.511

A New Mexico court has ruled that such fee waivers should not be enforced.512

A New York court did not enforce such a provision where the spouses at divorce were in very different financial circumstances, and barring court-ordered attorney's fees would have precluded the non-monied spouse from defending the divorce action as justice required.513 Courts in Colorado,514 Missouri,515 and Nebraska516 have taken a similar approach.

The Iowa Supreme Court has not enforced a waiver of the right to receive a court-awarded fee, to the extent that the waiver would impact a spouse's ability to make a claim for reasonable child support or spousal support.517

Other courts have not enforced the waiver of the right to counsel fees regarding specific issues, such as fees relating to alimony518 or creating a parenting plan.519

Florida courts do not enforce waivers of the right to court-awarded legal fees.520 A Connecticut court has enforced such a provision in a premarital agreement.521

The Iowa Supreme Court held that a provision in a premarital agreement purporting to waive the right to court-awarded legal fees could not be enforced regarding fees incurred relating to child support or alimony.522

In a Tennessee case, the court held that a waiver of the right to "alimony, of any kind, support or maintenance" included a waiver of the right to counsel fees.523

A number of courts have enforced a provision stating that, if any suit was brought regarding the agreement, the prevailing party would be entitled to attorneys' fees.524

In a Kentucky case, where the parties had signed a premarital agreement containing such a provision, the less wealthy party was ordered by the divorce court to pay the husband $98,000 in fees.525

In an Illinois case, where the parties waived the right to interim fees in a premarital agreement but did not waive equitable distribution, the court approved the award of interim fees as an advance of the wife's share of the marital estate.526

[3]—Agreement to Arbitrate

The Ohio Supreme Court enforced a provision contained in a premarital agreement that required arbitration of any dispute regarding child support or spousal support.527 If partners agree to arbitrate marital property matters, they probably lose any right to have a court review the fairness of the determination.528


A New York court has included in a divorce decree a provision contained in a premarital agreement barring a wife the right, without the husband's consent, to write about the marriage.529 It is less clear that a confidentiality clause in a premarital agreement will impact a divorce judge's inclination to ban the public from witnessing the proceedings.530

[5]—Enforcing Religious Contracts

An Arizona court decided not to require a husband to facilitate a Jewish religious divorce for his former wife, where the terms of the ketubah, their religious contract, were unclear regarding his obligations relating to this issue.531 Other courts, based on provisions of a marriage contract, have required a husband to participate in a ceremony to provide his wife a Get (Jewish divorce).532

Under New York law, a person petitioning for divorce must, if the marriage was solemnized by a clergyman, certify that he or she has removed all barriers to the remarriage of either spouse. New York courts have enforced this requirement by, for example, ordering a Jewish man petitioning to divorce his wife to cooperate in the Jewish divorce procedure (a Get).533 In New York, husbands who have unreasonably withheld a Get also have been punished in the division of the marital estate.534

In another New York divorce case involving a Jewish couple, the court awarded the wife $100 in weekly maintenance for five years. If the husband did not provide a Get within sixty days, the maintenance was to be increased to $200 per week.535 Another New York court has ruled that granting such relief would be unconstitutional.536

A New York court considered a provision in a premarital agreement that barred any divorce action in a civil court unless it was authorized by a rabbinical tribunal. The court did not enforce the provision because of unclear drafting, but seemed to suggest that a properly drafted provision of this type would be enforced.537

In a Maryland case, the parties had signed a premarital agreement. One term provided that in the event the parties separated, the husband would pay the wife $100 per day from the date of the separation until the husband granted the wife a Get. They also signed an arbitration agreement providing that any disputes regarding the agreement would be resolved by the "Beth Din," a rabbinical court provided to resolve disputes between Jews consistent with Jewish law. The parties separated, and the wife brought a claim before the Beth Din based on the marital agreement. The Beth Din originally ruled the wife was entitled to $10,200. The "Av Beth Din," referred to as the supervisor of the Beth Din, found that the husband was not obligated to pay the wife anything. The wife brought suit in state court to vacate this arbitration result. The court found that the parties had signed an agreement to arbitrate any disputes regarding the agreement and that the Beth Din and Av Beth Din complied with the rules and procedures of the Beth Din; the court therefore did not vacate the judgment.538

Islamic marriage contracts also have been litigated. One court did not enforce such a "mahr" when the contract did not set forth all material terms.539 Another enforced a contract which provided for a payment to the wife of $50,000 in the event of divorce.540 A California court has held that, to be enforced, an Islamic marriage contract must set forth in writing all material terms.541 A mahr traditionally provides that the husband will pay the wife a certain amount when he dies or they divorce. A California court has ruled that such a provision "encourages divorce" and is unenforceable.542 A Washington court has not enforced a mahr commitment when it was written in Farsi, which the groom could not read or understand.543

The typical Islamic marriage contract provides that the husband will pay the wife a specified amount if the parties divorce. These contracts evolved because there is no right under Islamic tradition to divide property accumulated during marriage at divorce.544 In the U.S., the question presented is whether such an agreement should be perceived as an agreement to waive equitable distribution at divorce in exchange for the specified payment. One court has concluded that the right to equitable distribution should be considered waived,545 whereas a few others have permitted equitable distribution.546 An Ohio court permitted the wife to maintain a divorce action and a division of the parties' property after the husband had paid the amount specified in the contract.547 Other courts have enforced upon divorce the obligation to pay the amount specified in the contract.548 Another Ohio court did not enforce the deferred mahr obligation where the contract was presented to the husband immediately prior to the wedding.549

Another case involved a Muslim couple who signed a postnuptial agreement while having marital difficulties. The agreement contained many unusual provisions. At the time the agreement was signed, the parties were seeing a religious counselor. They agreed that neither would file for divorce without first obtaining the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT