Matrimonia1

l

ournal

of

the

A

merican

Academy

of

Matrimonia

1

L

S

A

Journal

and

Digest

of Family

Law

FORBIDDEN

PROVISIONS

IN

PRENUPTIAL

AGREEMENTS:

LEGAL

AND

PRACTICAL

CONSIDERATIONS

FOR

THE

MATRIMONIAL

LAWYER

TOI{ATHAÀI

E. FIELDS

Volume

21

2008

Number

2

VoL.21,2008

Forbidden

Provisions

Forbidden

ProvÍsions

in

Prenuptial

Agreements:

Legal

and

Practical

ConsÍderations

for

the

Matrimonial

Lawyer

by

Jonathan

E. Fields*

413

I.

fntroduction

It

may

well

have

been

rapper

Kanye

West,s

,,GoId

Digger,',

which

topped

the

charts

a

few years

ago,

that

ultimately

brought

prentrptial

agreements

into

the cultural

mainstream.

In

extolling

the

virtues

of the

prenuptial

agreement,

the song

warns

that

with-

out

one,

the

football

star you

see

,,on

TV

any

given

Sunday"

win[s]

"the

Superbowl

and

drive[s]

off

in

a Hyundãi.,,

Later,tie

chorus pounds

away

"we

want

prenup!

we

want

prenup!,'1

Kanye's

enthusiasm

for prenuptial

agreements

is

hardly

unique,

and

they

have

become

more popular

in

the past

several

years.2

This

makes

it

all

the

more

imperative

that

matrimonial

lawyers

understand

the

permissible

scope

of

this

critical

docu-

ment.

This

article

focuses

on

the

scope

of

what is permissible

to

include

in

a

prenuptial

agreement.

-

A

prenuptial

agreement

is

"an

agreement

between

prospec_

tive

spouses

made

in

contemplation

of

marriage

and

to be

effec-

tive

upon

marriage

that fixes

the

respective

financial

obligations

H" ir*u

chusett

executive

board

of

the Massachusetts

council

of Family

Mediation.

Jon

re-

ceived

a J'D.

f¡om

Boston

university

and

holds

a 8.A.,

curn

laude,

from

Am-

herst

College.

1

Kanye

West,

"Late

Registration,',

(Roc-A-Fella

Records,

LLC

2005).

rohibited

Subject

Matter

in

prenuptial

Agreemenß,

$

are

(Ronald

L.

Brown

& Laura

W. Moigan,

eds.,

A

4L4 Journal

of the

American

Academy

of

Matrimonial

Lawyers

and

consequences

of

married

couples

upon death and/or

divorce."3

II. Agreements

That

Promote

Divorce

At common

law,

one of

the rationales

in

support of the

pro-

position

that

prenuptial agreements

were

void

ab initio was that

they

were

thought

to

promote

divorce.a

While

this

is no longer

the case,

a

particular agreement

that

"tends

unreasonably

tò en-

courage divorce

or

separation"

will

be unenforceable.s

Indeed,

modern courts

continue

to express

this rule

in dicta but

have only

invalidated

prenuptial agreements

on these

grounds in a handful

of

cases-two

of them

from

California,

a state

that appears

to

have

retreated

from

that

position.

The first

case,

In re Noghrey,6

involved

an agreement

whereby,

in the

event of

divorce,

the

prospective

husband would

give

the

prospective wife

an amount

the appellate

court

tbund

to

be both oversized

in comparison

to

the rest

of the

estate and so

financially

tempting

to the wife

that

it spurred

her

into

getting

a

divorce.

The agreement,

therefore,

was

invalidated.

In

the second

case,

In re

Daiani,T

the agreement

provided

that

the

wife receive

the

equivalent

of 5,000

Jordanian

dinars

(about

$1,700),

upon

divorce.

Incredibly,

despite

the

fact

that

the wife

stood

only

to receive

$L,700

(in

L988),

the

court held

that

"the

contract

clearly

provided for the

wife

to

profit

by

a di-

vorce,"

and found

it invalid.

It

is difficult

to imagine

any agree-

ment

in contemplation

of

divorce

that would

survive

a

Dajani

analysis.

California's

appellate

court,

in a subsequent

case,

In re

Mar-

riage

of Bellio,s

reiterated

the

general

rule that

agreements

pro-

motive

of

divorce

are unenforceable,

but expressly

stated

its

belief

that

Dajanl was

wrongly

decided. "A

dowry

worth

3

See

Frelds, supra

note 2, at

$1.01.

4

See

generally

id.

s

Id.;

Resrerelr¡nNr

(Secorvo)

or

CoNrn¡.crs

$

190

(1981)'

See

also 7

WiIIßton

on Contracß

$

16:19

(4th

ed. 2007)(stating

that

a contract

promoting

divo¡ce

will

not be upheld).

See

also McHugh

v.

McHugh,

436 A'zd 8,

12

(Conn.

1980).

6

215 Cal.

Rptr.

153

(Cal.

Ct.

App. 1985).

7

25t Cal.

Rptr. 871

(Cal.

Ct.

App.

1988).

8

129

Cal.

Rptr. 2d 556

(Cal.

Cr.

App. 2003).

Vol.21,2008

Forbidden

Provßions

415

$l-,700,"

noted

the court,

"is insufficient

to

jeopardize

a

viable

marriage."e

For

the

most

part,

the

practitioner

seeking

to invalidate

a

prenuptial

agreement

on the

grounds

that it

encourages

divorce

has

a difficult

challenge.

One

area, however,

where it

may be

possible

to

persuade

a

court on

this score

concerns

escalator

clauses

(in

which

the

amount

of

property

or support

increases

upon

attaining

certain

marriage

milestones).

Arguably,

if the

spouse

can save himself

money

by filing

before

a certain

dead-

line,

this might promote

divorce.

Consider the

high

profile

case

of

Donald

Trump

when he filed

for

divorce

against

Marla Maples

on

the eve

of an

anniversary

deadtne.ro

Although

the issue

has

hardly

been

addressed in

the

case law,

a

Connecticut

court has

held

void

a

prenuptial

agreement providing

a lump

sum of

$25,000

for

each

year

of

marriage

on

the

grounds

thaì it

faciti-

tated

and

promoted

divorce.ll

III.

Spousal

lVaivers in

ERISA

Plans

A.

Survivor

Benefits

ERISA-covered

pension

plans pose

special challenges

for

the

domestic

relations practitioner.l2

The

anti-alienation provi-

sions prevent

them from

being

divided

or transferred

except

through

the

mechanism

of

a

qualified

domestic

relations

order

(QDnO¡.t.

The

drafter

of

a

prenuptial

agreement

needs

to take

s

Id.

at 559.

10

Laune

W. Moncex

& Bnerr

R. Tunxen,

AttacrrNc

eNo De¡eNo-

rNo

Manrrer

AcnenlrnNrs

380

(ABA

2001).

11

Davis

v. Davis,

No.

FA 9501448075,

7996

WL 456335 (Conn.

Super.

Ct.,

July 29,7996).

!2

The

Employee

Retirement

Income

Security Act

of 1974

(ERISA)

29

u.s.c.

$

1001-1461

(2007).

13

A

QDRO

is

a type of

domestic

relations

order that "creates

or recog-

nizes

the existence

of

an alternate

payee's

rights to,

or assigns

to an alternate

payee

the right

to, receive

all or

a

portion

of the benefits

payable

with respect

to

a

participant

under a

plan."

29

U.S.C.

$

1056(dX3XB) (2007).

The

purpose

underlying

the

anti-alienation provision

was to operate

as a spendtbrift,

to

safe-

guard

and to

prevent

dissipation

of retirement

funds, Boggs

v. Boggs,

520 U.S.

833,

850, reh'g

denied, 521

U.S. 1138 (1997).

Congress

creared

rhe

eDRO

mechanism

as a

limited

exception

in

order to

protect

the

financial secwity

of

ex-spouses

and dependents

after divorce.

Id. The

United

States Supreme

court recently granted

certiorari

on the issue

of

whether

the

Fifth

circuit

was

4L6

Journal of the American Academy of Matrimonial

Lawyers

special care, as well,

with

regard to ERISA

qualified

plans,

since

the statute limits the

ability of

parties

to waive certain ERISA

rights.

At the

crux of

the matter is

the

Retirement Equity

Act of

1984,14

which

amended

ERISA for many reasons, one of

which

was

"to

ensure that

a

participant's

spouse

receives survivor

bene-

fits

from a retirement

plan

even

if

the

participant

dies

before

reaching retirement age,"ts It dictated that defined

benefit and

certain other covered

pension plansl6

were required to

provide

for

a

"qualified

pre-retirement

survivor annuity" that, by opera-

tion of law, would

go

to

the

participant's

surviving spouse

unless

waived

in favor

of another beneficiary with the written consent

of the spouse.tT

Regarding

whether a waiver

in

a

prenuptial

agreement con-

stitutes an effective spousal waiver, the

position

of the Depart-

ment

of the

Tieasury

is unequivocal. z\ccording to the

regulations,

"an

agreement entered into

prior

to marriage does

not satisfy applicable consent requirements."ls Because

the sig-

natories

to

prenuptial

agreements are not

yet

"spouses,"

most

courts

have interpreted

the

law

similarly and

have

found that a

correct in holding that a

QDRO

was the only valid way a divorcing spouse can

waive her right to receive her ex-husband's

pension

benefits

under

ERISA.

Kennedy v. Plan Adm'r for Dupont Savings and Inv. Plan,2008

WL

423542,76

USLW 3276,76 USLW 3425

(U.S.

Feb 19,2008)

(NO.

07-636).

t4

Pub. L. No. 98-397,

98

Stat. 1.429, ametding 26

U.S.C.

$$

401 . This law

is also referred to by its acronym

"REA."

1s

Hurwitz v. Sher, 982F.2d778,787

(2d

Ctr.1992). See ¿/so Hawxhurst v.

Hawxhurst, 723 A.2d 58, 64

(N.J.

Super. Ct. 1998)

(citations

omitted)

("ERISA,

as

amended

by the

Retirement

Equity Act of

1984,

also acts to safeguard the

financial security of

widows

by mandating that

pension plans provide

automatic

swvivor benefits.").

1-6

See

29

U.S.C.

$

1055

(stating

that all defined benefit

plans

plus

various

other

plans

defined in the statute are subject to the requirernent).

77

"Specifically,

the waiver

of

a surviving spouse's right to

benefits

is not

valid unless

(1)

it

is in

writing;

(2)

it either recites the alternative beneficiary or

expressly

permits

the employee

to

designate an alternáte without further con-

sent of the spouse; and

(3)

it

'acknowledges

the

effect' of the waiver and

is

noLarned

or

witnessed by a

plan

representative. In addition,

the waiver

must

be made within the

"applicable

election

period."

In re Marriage of Rahn, 914

P2d

463,465

(Colo. Ct. App. 1995),

citing

29 II.S.C.

$$

105.5(cXz)(a)

and

10ss(c)(1)(A).

18

26

CFR

$1.401(a)-20.

Vol. 21,2008

Forbidden Provisions

417

prenuptial

agreement is ineffective

to waive survivor

benefits.le

The

concept

is

rudimentary;

as one court

put

it,

"a

spouse-to-be

is not

a

spouse."2o

Considering

the

judicial

deference that

courts

must

give

to

agenÇy

interpretations,

this is a difficult hurdle

for

proponents

of

prenuptial

agreements to

jump.

As litigants

continue to feel that the intentions

of their

dearly departed

are being frustrated

by the

procedural

require-

ments of the law,

they have urged courts,

without much success,

to

consider the

intentions of the

parties.

Most courts find,

how-

ever,

the fact

of the

purported

waiver

in the

prenuptial

agree-

ment,

along

with

the fact

that the deceased named

people

other

than his surviving

spouse as survivor

beneficiaries with the

plan

administrator,

to be irrelevant.

As

to

the

scope of the

waiver,

practitioners

should remem-

ber

that ERISA

only

protects

surviving spouses

and, more im-

portantly,

that

the statute is construed

quite

literally:

one has to

be both

surviving and a spouse

to enjoy the

protections

of

ER-

ISA's

spousal

waiver

Iaw.21

Practitioners must

also remember

that

most courts have

held that the law

only applies to survivor

Le

Hagwood

v. Newton, 282F.3d285

(4tl¡'Cír.2}l2);National

Auto Deal-

ers

v.

Arbeitman,

89 F.3d 496

(8th

Cir.1996); Pedro Enter. v. Perdue,

998F.2d

497

(7th

Cir. 1993);Howard

v. Branham & Baker

Coal Co.,968 F.zd 121,4

(6th

Cir. 1992);

Nellis v. Boeing

Co.,

7992

WL 122773

(D.

Kan. 7992);

See also Sabad v. Fessenden,

825 A.zd 682,695

(Pa.

Super.

Cl2003)

(citations

omitted), noting that

"the

spousal rights

under ERISA

do not

survive

a

judgment

of divorce

and once

a divorce is

granted,

the survivorship

benefits

are

moot".

26

Savage-Keough,86l

A.zd

at I31; Moor-Jankowski

v. Moor-Jankowski,

222

A.D.2d 422

(N.Y.

Ct. App.

Div. 1995);

Edmonds

v. Edmonds,

710

N.Y.S.2d

765

(Sup.

Ct. 2000); Stewart v.

Stewart,

541 S.E.2d 209

(S.C.

2000). But

see

Richards

v. Richards,

640

N.Y.S.2d

709

(1st

Dept. 1995)

(holding

that

a

prenup-

tial agreement

did not bar a nonparticipant

spouse from

equitable distribution

of her

participant

spouse's

pension).

T\e Richards

decision has

been criticized

for its failure

to distinguish

between

survivor benefits

a¡d

other

interests

in

ERISA

plans.

See Sabad, 825 A.zd

at 697, in which

the Pennsylvania

court,

interpreting New

York law, rejected

Richards in

favo¡ of Moor-Iankowski,222

A.2d

422.

VoL 21,2008

Forbidden

Provßions

419

nuptial

agreement

at issue

operated

to

waive a former

spouse,s

property

interest

(as

distinct from

her

survivor

annuity)zs

in her

former

husband's pension.

In

Critchell,

as

in

Rahn,

the

court

noted

that

ERISA's

spousal

waiver

provision2e

does

not

address

a former

spouse's

capacity

to

waive

her

property

interest

in her

husband's pension

at the

time of

divorce.

The

spousal

waiver

statute

"does

not

create

or

afford

a former

spouse

any

substan-

tive rights."3o

The

divorcing

spouse's

right

to

a

property

interest

in

pension

benefits,

the

court reminded,

is

only

a

function

of

state

domestic

relations

law.

Even

if

a spouse

executes

a valid post-marital

ERISA

waiver, there

can be

problems

with

enforcement

if that

spouse is

under

35

years

of

age at the

time

of execution.

Practitioners

should

note

that

the

statute provides

that

the waiver

becomes

ineffective

on

the nonparticipant

spouse's

35th

birthday

and the

spouse

must

execute

a new

waiver.31

B.

Rollovers

The question

of rollovers

can

compïcate

matters.

What

happens,

for

example,

when

a

pension

in

existence

at the time

that

a

prenuptial

agreement

is

executed

has

been rolled

over

to

an IRA

by

the time

of the

parties'

divorce?

The

husband

tn.

Hawxhurst

v. Hawxhurs?2

found

out the

an-

swer

the hard

way. The

prenuptial

agreement provided

that his

wife

was entitled

to

50

percent

of

his

assets in

the event

of

a

divorce

after

a marriage

of five

years

or longer.

About

five

months

before

he filed

a

complaint

for

divorce,

Mr. Hawxhurst

took

an

early retirement

package

from

his

employer,

New

Jersey

Bell.

As

part

of the

package,

he took

a lump-sum

distribution

of

his pension

benefits

which

was accomplished

by

a

rollover

of

the

pension

funds

to an

IRA

(a

non-ERISA

asset)

in his name.

The

27

Critchell

v.

Critchell,

746 A.zd282(D.C.2000)

(citations

omitred).

2a

Id.

aT.284. But,

as noted

earlier,

this

is of no

comfort

to the divorced

spouse

whose

ex-spouse

is

still alive.

2e

29 U.S.C.

$

1055.

30

Critchell,746

A.zd 58

(N.J.

Super.

App.

Div. 1993).

3t

Denise

K. Mills,

Beware

of

the Trap-Marital

Agreernents

and ERISA

Benefits,

23 Cot-o.

Ltw.

577, 599

(1994);29

U.S.C.

$

f055(c)(7)(U).

32

723 A.zd

58,65

(N.J.

App.

Div.1998).

420

lournal

of the

American Academy

of

Matrimonial Lawyers

funds

were

never commingled

and were

directly

traceable to the

pension funds.

Mr. Hawxhurst

argued that,

under ERISA,

his

wife

was

not

entitled

to the IRA because

those funds

originated

from his

pen-

sion and were

therefore

"forever

sheltered"

by

ERISA. The

court disagreed,

holding

that once the

funds were

distributed,

ERISA's

anti-alienation

provisions no longer

protected

them.

The benefits

of the

pension,

the court

concluded,

are protected

"only

while

they are

within the

fiduciary

responsibility of the

fund manaSeÍ."2t

Considering

the landscape of

this area,

creative drafting is

imperative and,

to that end,

a few considerations

are offered.

Counsel

would be wise

to include

in their agreements

provisions

requiring

that the

particþant

spouse

provide to the nonpartici-

pant

spouse

a waiver

form within

a certain

time frame and that

the latter be

required

to execute the waiver

within a certain time

period

following

their

marriage. If the waiver

is

delivered and

properly

executed,

of course,

there is

no

problem.

If, however, the waiver

is neither delivered

nor executed,

the

participant spouse can

take the extraordinary

act of seeking spe-

cific

performance

of

the contract.

Although actions

regarding

is-

sues arising

during an

intact marriage

are

"generally

frowned

upon

as disruptive

of marital

harmony,"

courts have

intervened

in some cases.3a Of

course,

a

plaintiff-spouse who files

such a

suit

may soon

find himsell

a defendant-spouse

in divorce

court.

This does

not necessarily

mean that a

party

who executed

a

prenuptial

agreement

purporting

to waive

survivor benefits

can-

not ultimately

be

held to his

bargain. Assume

that

parties

en-

tered

into a

prenuptial

agreement

containing

the

provisions

set

forth above, and

one

party,

the wife,

failed to sign

the waiver

following

the marriage

despite a clear

directive in

the agreement

to do so.

The husband

died and she

sought

her statutorily

pro-

33

Id., citing

Guidry

v. Sheet Metal Workers

Nat'l Pension

Fund, 39 F.3d

1078,1082

(10th

Cir. 7994),

cert. denied,514

U.S. 1063

(1995).

34

See

generally

AlBxeNoen

LrNoev &

Lours I.

Panrev, LrNpsv axo

Panrsv

oN Sepen¡.rroN

AcnssvENTS AND

ANreNurrrer

CoNrnacls

S

110.75

(2d

ed.2002). See id.

ar.

S

L10.75(2)(c)

("\Vhen

the

[prenuptial]

agree-

ment

provided

for the husband

to

purchase

a life

insurance

policy in

a specified

amount

for the wife's

benefit, she

could sue during

the marriage

to specifically

enforce the obligation,"),

citing

Lloyd

[sic]

v. Lloyd

[sic],48

S.E.2d 365

(Ga.

1e48).

Vol. 21, 2008

Forbidden

Provisions

42t

tected

survivor

benefit.

The

plan

refused

to disburse,

arguing

that the

prenuptial

agreement

operated

as a

waiver to

benefits.

The

wife filed

suit, taking

the

position,

consistent

with that

of the

Department

of Treasury

regulations

and most

courts,

that the

agreement

did

not constitute

a valid

waiver. The

trial court

and

the

appeals

court found

for

the

wife and directed

the

plan

admin-

istrator

to disburse

proceeds

in

accordance

with ERISA.

The

plan

administrator

disbursed

the

proceeds

to the

surviving

spouse.

The

executor

of the

decedent's

estate

may

not, however,

be

out of remedies.

He may

have

a cause

of

action against

the sur-

viving spouse

for

breach

of the

prenuptial

agreement.

As one

court

put

it:

If

[the

decedent

husband]

was

prevented

from

filing

a fully

executed

designation form

with

the

plan

administrator

because

of a

breach by

[his

wife, the surviving

spouse]

of her solemn

undertaking

to sign the

form,

we see no reason

at all why

[the

executor]

may

not hold

her to

her bargain

and require

her

to disgorge

whatever

benefits she receives

as

a

result

of the breach.3s

The

counter

suit

by the executor

is

not itself

without flaws.

A

surviving

spouse

seeking

to

avoid the

agreement

may

argue

that

the

action is merely

a way

to circumvent

ERISA

and

thus

should

be dismissed.

Indeed,

in

one case,

the

decedent's

estate

argued

that

the court

should

compel

the surviving

spouse

to

up-

hold

her

end

of the

bargain. The

court

rejected

the

estate's

',at-

tempt

to

circumvent

the requirements

of valid

consent

under

ERISA."36

To

shore up

the enforcement prospects

of

their agreement,

drafters

of

prenuptial

agreements

may

wish to

attach the

consent

form

as an exhibit

to the

agreement.

An

agreement

might

also

require

that if the

waiver is

not

executed

within

a

particular

time

frame,

then

the

participant

spouse

is appointed

as the non-par-

ticipant

spouse's

attorney-in-fact

for

the

specific

purpose

of com-

pleting

the

waiver.37

(However,

it is

not clear

that

a

particular

3s

Callahan

v. Hutsell

et. al. 7993

V/L

533557

(6th

Cir. 1993).

See

also

John Deere

v. Estate

of

Propst,

2007

WL 459468I (E.D.

Wis. 2007)

in

which the

court held

that ERISA preempted

any such

contract claim

that the

estate might

assert.

36

Zinnv.

Donaldson

Co.,799 F.

Supp.69

(C.C.D.

Minn. 1992).

37

Dennis

I. Belcher

& Laura

O. Pomeroy,

A

Practitioner's

Guide

for

Ne-

gotiating,

Drafting

and Enforcing

Premarital

Agreements,37

R¡er-

pnop.

pnoe.

422 Journal of the American Academy of Matrimonial Lawyers

plan

may be compelled

to

accept this

as a valid waiver).

Drafters

could also include

a

provision

that

gives

the

owner's

beneficiaries

a cause of action against the surviving spouse

if he

fails to

exe-

cute

a

spousal waiver.38

Drafters

may also wish

"to

include a

provision

whereby a

spouse's

share

of other

property passing

by

virtue

of

the

agree-

ment

will

be reduced if

the

spouse

eventually

receives

the

pen-

sion benefits

which were

[purportedly]

waiied

in

the

agreement."3e

Akin to this

provision

is

one

that has a

"specific

remedy for failure to comply

with

the

waiver,

including

dam-

âges."4o

In

this case,

the agreement

should

further stipulate

that

if the spouse does not sign the

waiver,

"he

or she will

pay

dam-

ages to

the

designated beneficiaries."4l Similarly,

an

agreement

might contain a clause stating that the failure to execute a

post-

marital waiver

"will

cause money received by the spouse from

the

retirement

plan

to

go

into a constructive trust for

the desig-

nated beneficiaries.

"a2

fV. IVaivers of

Permanent Alimony, Temporary

AlÍmony,

and Counsel Fees

The

Uniform

Premarital Agreement Act explicitly

allows

parties

to make agreements

regarding

"the

modification

or elimi-

nation of spousal support"a3 and

"any

other matter, including

their

personal

rights and obligations,

not

in violation of

public

policy

or a statute imposing a criminal

penaLty."++

The American

Law Institute, in its Principles of the Law of Family Dissolution:

Analysis and Recommendations, suggests a broad scope regard-

ing what subject matter can be included in

prenuptial

agreements

and, accordingly, the waiver of alimony is

permissible

in its

rec-

& Tn. J. 1,

(2002).

This author has found no case

law

i¡r which these types

of

provisions

are discussed.

rd.

Mills, supra note 31, at 579

Id.

rd.

Id.

UNr¡.

Pn¡rr¡anrr¡.r- Âcnrnr,r¡¡¡r z\sr

,

9C U.L.A. 35,

$

3(a)(4)

at

43

Id

$

3(a)(8)

at

a3.

38

39

40

4l

42

43

(2001).

M

l.

21,

2009

Forbidden

Provisions

423

ommended

statutory

framework.as

In

states

that

have

not

adopted

the UPAA,

the trend

has

been to

allow parties

to make

such

agreement.

No

states

have

yet

adopted

the

ALI

princþles.

Although

such

waivers

were

prohibited

at common

law,

as

of February

2008,

43

jurisdictions

now

permit

parties

to

waive

alimony

in

a

prenuptial

agreement

or, more precisely,

they

are

no

longer void per

se.a6

In

all states

that

permit

waivers

of

alimony,

these

waivers

will not

be

enforced

if the

enforcement

would render

the

spouse

a

public

charge.aT Furthermore,

waivers in

a

given

case

may

be

stricken

as

a result

of either

the substantive

or

procedural

fair-

ness

tests ín

a

particular

state

as applied

to

the

particular

set of

facts

before

the

court. Although

alimony

in

modern

U.S. law

is

now

generally

a

proper

subject

matter

for

inclusion

in

a

prenup-

tial

agreement,

the alimony

provision

will rise

or fall

according

to

the

factual circumstances

of

the case

and

the law

of the

applica-

ble state.

The

issue

of temporary

alimony

is,

however,

a

different

mat-

ter

altogether.

The

majority

U.S. rule

is

that

spouses

have

a duty

to support

one

another

during

the marriage

and

that parties

can-

not

agree to

terms

that hold

them harmless

from

support

obliga-

tions

in

coverture.as

Because

temporary

alimony

is

support

that

is

rendered prior

to

the

judgment

of

final

divorce

and;

tñerefore,

during

the marriage,

many

courts

have

viewed prenuptial

agree-

ments

as invalid

to the

extent

that

they relieve

one

spouse

of his

duty

to

support

the

other

spouse.ae

According

to

one treatise,

4s

American

Law Institute,

Principles

of the Law

of

Family

Dissolution:

Analysis

and Recommendation,

ch.7

(2002)

[hereinafter

,,ALI

princþles"].

46

Id.

47

See,

e.g., Bassle¡

v. Bassler,

593 A.zd

82

(Vt.

1991) (enforcement

of

agreement

was contrary

to

public

policy

when wife

was

on

welfare

at the

time

of

the hearing).

48

Hugh,

v.

Nor

1e78);

P.2d

1030

(N.M.

1979);Mirizio

v.

Mirizio,

150 N.E.

605

(N.y.

1926);Motley

v.

Motley,

120

S.E. 422

(N.C.

t96t).

4e

LrNoBy

& Panrev,

supra

note

35,

at

g

110.69,

citing Eule,320

N.E.2d

506.

424 Journal

of the

American

Academy

of

Matrimonial

,

even

including

such a

provision in an agreement

might render

tl'

whole

agreement

void.so

Shortly

after

Florida opened

the

doors

for

prenuptial

agree-

ments in

its state and

the rest

of the

country

in Posner v. Pos-

ner,s7

the Supreme

Court

of

Florida,

jn

Belcher v'

Belcher,s2

contronteci

another

prenuptiai agreement.

in fact, tire üne

of

Florida

cases

following

Belchers3

illustrates

the

policy

concerns

underlying

the

general

prohibition against

the waiver

of tempo-

rary support.

As

distinguished

fuom Posner,sa

whose

agreement

sought

only

to

apply following

the

party's divorce,

in Belcher,ss

the

agreement

contained

a blanket

waiver

of

"any

and all" claims

that the

wife would

have

against

the husband.

Mrs.

Belcher

filed

a

suit

for alimony

unconnected

with

a

divorce.

Mr' Belcher

sought

enforcement

of the

prenuptial

agreement

that

he argued,

barred

his wife's claim

of alimony

and counsel

fees.

The court

rejected the

husband's

claim,

holding

that the

duty

of support

includes the

obligation

to

pay

alimony

and

counsel

fees

for

"so

long as she

has the

legal status

of wife."s6

Permanent

alirnony

after divorce,

the

Belcher

court noted, "is

another

mat-

teÍ."57

Other

Florida cases

have

followed

Belcher.ss

In Fechtel v.

Fechtel,se

a

Florida

appellate court

dealt

with

the

issue

of counsel

fee waivers.

The court

there

upheld a

pre-

nuptial

agreement

that

provided that, in

lieu of alimony

and

counsel

fees, the

husband

would

pay

the wife ten

dollars

in the

event of

a divorce.

The wife

challenged

the trial

court

holding

that the

agreement

was valid.

The appellate

court

found

that the

agreement

was valid

except

for

the

provision

waiving

counsel

s0

F¡vrny

Law ¡.Np

Pn¡.crrce

$

59.05

(15)(a) (Matthew

Bender

2004)

(citations omitted).

s1

233

So. 2d 381,383

(Fla. 1970).

s2

27L

So. 2d 7

(Fla.

1972).

53

Id.

s4

Posner,

233 So.

2d 381.

ss

271 So.2d

at 72.

s6

Id.

af 72.

s7

Id.

af I0.

s8

For an article

criticizingfhe

Belcher

rule, see

Christopher

Chopin,

Nup-

tial Dentßtry:

Adding Teeth

to Waivers

of Ternporary

Support,

Attorneys'

Fees

and

Costs in

Marital Agreements,

77

F¡-l^.

B.J. 48

(Aug.

2003).

se

556

So. 2d 520

(Fla.

Dist. Ct.

App. 1990).

VoL.21,2008

Forbidden

Provisions

425

fees.

"A husban

during coverture

includes.liability

I needs/ability

to

pay

test)

for his

fees

and

cannot

be contractgd

away."oo

held

that

the

provision

was invalid

because

it

had

the

effect

of

waiving

the

husband's

obligation

to pay

counsel

fees

duríng

the

maniage.

A

minority

of courts

have

held

that

a

waiver

of

temporary

support

is

valid

and

enforceable.

In

those

cases,

traditional

con-

tract interpretations

are

fundamental

to the

outcomes.

The

agreement

in

Beal

v.

Beal'z

provided

that

the

wife

,,shall

receive

no

alimony

upon

divorce."63

The

trial

court

had

awarded

inv

ffi:å'ïli;

the

is illustrative.

paid

more

than

her half.

The

court

found

that the

agreement

was

60

67

62

63

64

65

Rubin,

(ohio

66

Id.

at 520.

855

So. 2d

87

(Fla.

Dist.

Ct.

App. 2003).

88 P.3d

104

(Alaska

2004).

Id.

at L13.

Id.

See

also Darr

v.

Darr,

950

S.V/.2d

867

(Mo.

Ct.

App.

1997);

Rubin

v.

690

N.Y.S.2d

742

(N,Y.

App. Div.

1999);

Kelm

v.

Kelm,

623

N.E.2d

39

1993);

Musko

v.

Musko,

697 A.zd255

(pa.1997).

268

CaL

Rptr. 895

(Cal.

Ct. App.

1990).

426 lournal

of the

American

Academy

of

Matrimonial

Lawyers

void

because

it

sought

to affect

the statutory

obligation

requiring

spouses

to

support

each

other

during

marriage.

To

the same

effect

is another

California

case,

Borelli

v. Bris-

seau.67

There,

the

parties had entered

into a

prenuptial agree-

ment

concerning

rights

to

property in

the case

of divorce

and

death.

Following

the

marriage,

the

husband

became

i11. Eager

to

leave

the

nursing

home and

return

to

his own

bed,

he struck a

deal

with

his wife;

If she would

care

for him at

the marital-home,

he would "leave"

to her

certain

property'

The

husband

died and

the wife

sought

to enforce

the modi-

fied agreement.

The court

found

that

because

the wife

already

owed

her

husband

a duty

to take

care of

him in sickness,

the

modified

contract

was

not

supported

by

new consideration

and,

therefore,

was

unenforceable.6s

Finally,

in Towles

v. Towles,6e

the

parties

had

entered

into an

agreement

whereby

the

wife

promised never

to bring

any

suit,

including

a divorce

suit,

against

her

husband.

The wife

filed

suit

and the

Supreme

Court

of South

Carolina

found the

agreement

to

be void

on the

grounds that the

husband

had a duty

to support

his wife

and

that the wife

had

no means

of enforcing

that right

if

the

agreement

were

enforced.

V. Child

Support

and Child

CustodY

Not

surprisingly,

provisions in a

prenuptial agreement

pur-

porting to

affect

the

rights of

the

parties' children

are void

as

against

public

policy. Provisions

limiting

child

support

are

unen-

forceable,

as

are

provisions

that

seek

to dictate

the

custody of

a

child

or a

parenting

schedule

unless

the disposition

is also

in

the

best

interests

of the

child.To

67

L6 Cal.

Rptr. 2d

16

(Cal.

Ct, App.

1993).

68

Id.

6e

1825.8.2d

53

(S.C.

1971).

Two things

should

be

noted abottt

Towles-

First,

it involved

a

post-marital

"reconciliation

agreement,"

although

the same

rationale

would

clearly apply

to a

prenuptial agreement.

Second,

it was

over-

ruled on

equal

protection

grounds

insofar

as

it held that

a husband

had a duty

to

suppoft

his

wife.

The modern

duty speaks

to spousal

obligations

generally.

Hardee

v. Hardee,

585 S.E.2d

501, 504

(S'C.

2003)

70

S¿e

MonceN

&

TunNen, supra

îoÍe 10,

at 390, clring

Kilgrow

v.

Kil-

grow, 107 So.

2d 885

(Ala.

1958);

Edwardson

v'

Edwardson,

798 S.W.2d

941'

946

(Ky.

1990)

(noting, in dicta,

that issues

of child

support,

child custody,

and

VoL

21,2008

Forbidden Provisions

427

One

impact

of

this

general

rule that

is less obvious but

criti-

cal to understand concerns

the ability of

a custodial

parent

in

the

context

of a divorce to

remain in the marital

home with the

chil-

dren until they are

emancipated.

In some states,

this is

referred

to

as

a "traditional

child

support

provision."71

In

the

appropriate

case, counsel should argue

that, although

a

prenuptial

agreement

may be valid, the custodial

parent's rights

to

remain

in the mari-

tal

home

is unaffected

by the agreement.

The

proscription

against

custody

provisions

can also

affect

prenuptial

waivers of counsel

fees

in

cases where

such

fees have

been

incurred for custody

issues. In a Washington

case, the

par-

ties entered into a

prenuptial

agreement

containing

broad fee

waiver

language.Tz

While

the wife was

still

pregnant

with their

first

child,

the husband

filed for divorce; both

parties

sought

cus-

tody of the infant daughter,

and the wife

incurred about

$3L,000

in connection with litigating

these child-related

issues.

The trial court denied

the wife's

request

for an award of

counsel fees on the basis

that the

prenuptial agreement

barred

such relief. The wife argued

that the state

has an

interest in

pro-

tecting the

ability

of a financially weaker

party

to contest custody

issues in the name

of

"protecting

its

youngest

and

most vulnera-

ble citizens."73 To achieve

this, the wife

argued the

parties

must

have

a

level

playing

field where

both

parents have

"equal

access

to the courts to

present

their

evidence

regarding which

parent is

more fit to be the

primary parent."Ta The appeals

court, ac-

cepting

the

wife's argument,

reversed; the court

held

that,

to the

extent a counsel

fees

prohibition in a

prenuptial agreement seeks

to bar

fees

incurred

in litigating a

parenting

plan,

it is unenforce-

visitation cannot

be waived in a

prenuptial

agreement);

Huck v.

Huck,

734P.zd

417,419

(Utah

1986)

(child

support

not waivable by

prenuptial

agreement).

See

a/so Combs v. Sherry-Combs,

865 P.2d 50,

54

(V/yo. 1993)

(provision

in

post-

nuptial

agreement

providing

custody

to be

granted

to

the same-sex

parent

is

void as

against

public policy); Rnsratevren-r

(Secor.ro)

or CoNrnacrs

$

191;

L¡Noev & Panr-ev, supra

îo|.e 35, at

$

110.69. See also

generaþ

ALI

Princi-

ples,

supra

nofe 46,

aT

ch.l.

77

Hartog v. Hartog 535

N.E.2d 239

(Mass.

App. Ct.

7989); see also'latat

v. Schuker, 874 N.E.2d

48L

(Mass.

App.

Ct. 2007).

72

In re Marriage of

Burke, 980

P.2d 265

(Wash.

Ct.

App. 1999).

73

Id.

at267.

74

Id.

428

Journal

of

the American

Academy

of Matrimonial

Lawyers

able.Ts

In

any

event,

the

case

should

encourage

counsel

litigating

prenuptial

agreements

to

segregate

child-related

billing

in

these

matters.

Way off

the

beaten

track

is

the issue

of

pet

custody.

Ani-

mals

have

long

been

regarded

as

personal

property

in the

law

animal

in

the past.7ó

Vf. Regulaúion

of

Conduct

During

the

Marriage

Courts

have rarely

considered

and

generally

refused

to

en-

force prenuptial

agreements

regulating

the rules

of

conduct

dur-

ing

the

marriage,

in keeping

with

"the well-established

rule

that

s to

's

daily

leas

es with

won

do not

want

to

enforce

agreements

that

provide

that

a treasured

snow-

ball

collection

may

be kept

in

the

fueezer;

that

one

party

must

walk

the

dog,

or that

a

husband

has

the

option

to sue

for

divorce

if

his

wife

gains

more

than

fifteen

pounds.,,78

Cases

actually

litigated

between

spouses

during

an intact

marriage

are particularly

rare.

In

one

such

case,

during

an intact

marriage, parents

became

involved

in

a dispute

regarding

whether

to

send

the

child

to a

particular

school.

The

court,

in

Kilgrow

v. Kilgrow,Te

found

that

it was

without

jurisdiction

to

act

in

the

matter

because

the

"controversy

involved

a family

dispute

7s

Id

at266.

76

See

generally,

Heidi

Stroh,

Puppy

Love:

providing

for

the

Legal

protec-

tion of

Animals

when

Their

owners

Get Divorced.

2

Axrvran

L. &

Ernrcs

231

(2007);

see

also A¡rn

Hartwell

Britton,

Bones

of contention:

Custody

of

Family

Pets,20

J. Avr.

Acao.

Mannrrvr.

L¡w.

1

(2006).

77

Judith

T.

Younger,

Perspectives

on Antenuptial

Agreements:

An

Upd,ate,

8 J. Avr.

Acao.

M,o.rnrrø.

Law.

1,

8

(1992).

7a

Al[son

A. Marston,

Planning

for

Love: The

politics

of

prenuptial

Agreements,49

SraN.

L. Rev.

887,

900

(7997),

referring

to

actual

agreements

reported

in

Judith

Rehak,

Prenuptial

Accords:

watking Down

the Aisle

and

Reading

Fine

Print,

INr'r- Ilpn¡.r-o

Tnrs.

14

(Feb.

25,

1995).

7e

107 So.

2d

885

(Ala.

1959).

The prenuptial

agreement

at issue

provided

that

the children

born of

the marriage

were

to be

educated il

the

religion

of

the

VoL21,2008

Forbidden

Provisions

429

and there

was no

question

concerning

the custody

of the

child,

and

the

parents

and the

child

were all living

together

as a family

group."80

Other

reasons

for

the

courts' lack of

enthusiasm

for becom-

ing involved

in intact

marriages

are

enforcement

difficulties

and

the

complexity

of

gauging

economic injury.

As

one

commentator

notes,

"a court

would

be

ill-equipped

to specifically

enforce a

provision

allocating

housework

between

the spouses,

or to mea-

sure the

value

of such

work in

awarding

damages for

a spouse's

failure

to

perfor¡¡."8r

While courts

are less than

eager

to make

pronouncements

about

which

spouse

should clean

the bathroom

or do the dishes,

they

are more

inclined

to

render

judgment

if the issue

is about

money.

Indeed,

although

still

quite

rare,

courts have

enforced

agreements

regarding

the

financial

consequences

of divorce

or

deaths

even

where

the spouses

are in

intact

marriages.

In one

such

case,

a

prenuptial

agreement provided

that the

husband

purchase

a

life

insurance

policy

in a specified

amount

for

the

wife's benefit.

The

court in

that case

held that

the wife

could

sue

during

the marriage

specifically

to

enforce

the

obligation.sz

In

another

case,

a spouse

was

permitted

to seek

a declara-

tory

judgment

during an intact

marriage

regarding

the

interpreta-

tion

of

a

prenuptial

agreement.

The

wife in Trossman

v.

Trossmans3

asserted

that, if

her husband

predeceased

her, she

in-

tended

to

exercise

her rights

to dower

and

to her intestate

share.

The husband,

in response,

filed

a

complaint for

declaratory

judg-

ment

that

the

prenuptial

agreement barred

her from

taking

under

the

intestacy

statute. The

wife sought

to dismiss

the action

on

the

grounds

that her

husband's

complaint

failed

to state

a

cause

of

action.

The court rejected

the

wife's argument,

finding

father.

The

school

to which the father

wanted the

child

to

go

\ryas

associated

with his particular

religious

denomination.

80

Id.

aI 888.

81

Laura

P.

Graham,

The Uniþrm

Premarital

Agreement Act

and Modern

Social Policy:

The Enforceability

of Premarítal

Agreements

Regulating

the

Ongoing

Marriage,23

Ware Fonnsr

L. Rev. 1037,

1060

(1993).

82

Loyd

v. Loyd,48

S.E.2d 365

(Ga.

1945).