Section 4.4 Statutory and Common Law Considerations

• Library: Family Law Deskbook and 2014 Supp

B. (§4.4) Statutory and Common Law Considerations

As mentioned in §4.2 above, §§ 474.120 and 474.220, RSMo 2000, set forth general requirements for antenuptial and postnuptial agreements affecting marital rights upon death. Assuming a waiver of marital rights, other pertinent probate statutes that should be considered, discussed with the client, and, if applicable, referenced in the agreement include the following:

§ 474.010, RSMo 2000, intestate share

§ 474.160, RSMo 2000, taking against will

§ 474.250, RSMo 2000, exempt property

· § 474.260, RSMo 2000, surviving spouse entitlement to reasonable allowance

§ 474.290, RSMo 2000, homestead allowance

As noted in §4.2 above, there are no express statutory provisions setting forth requirements for a valid antenuptial or postnuptial agreement affecting rights in the event of dissolution of marriage. Section 452.330.2(4), RSMo 2000, of the dissolution of marriage statutes requires only that the agreement be in writing.

For agreements affecting marital rights upon termination of marriage other than by death, the following family law statutes should be considered, discussed with the client, and, if applicable, referenced in the agreement, particularly if there is to be a waiver of the rights set forth in the agreement:

· Sections 452.315 and 452.335, RSMo 2000, pertaining to maintenance—both pendente lite and in accordance with a final judgment of dissolution of marriage. As discussed in §4.15 below, there is a question as to the public policy against waiving the right to maintenance and the conscionability of a waiver, particularly if the circumstances of the parties at the time of trial would otherwise dictate an award of maintenance.

· Section 452.130, RSMo Supp. 2011, pertaining to the rarely utilized action for separate maintenance.

· Section 455.050.3, RSMo Supp. 2011, pertaining to maintenance in an adult abuse action.

· Section 452.330.2, pertaining to marital property
and exceptions to marital property. Extreme caution is warranted because of the extensive and fluid caselaw in this area. Assuming marital rights to property will be waived, counsel should consider the applicability and treatment of the so-called “source of funds” rule originally enunciated in Hoffmann v. Hoffmann, 676 S.W.2d 817 (Mo. banc 1984), including the postmarital payment of premarital debts encumbering or associated with assets.

Counsel should also consider how to treat postmarital income—i.e., wages, interest, dividends, rents, and profits. Further consideration should be given to increases in value of property attributable to marital funds and marital labor. The effect of joint titling and commingling of funds should also be considered and, if applicable, addressed in the agreement. Counsel needs to be aware of the many novel theories at the vanguard of marital property...