Attorneys
Ed Knerr
Edmund L. Knerr is a Certified Family Law Specialist. He has been practicing law for 28 years and has been with the firm of Oyler & Woldman (formerly Knerr & Oyler) for 27 years.
Mr. Knerr also worked for the firm of Trope & Trope from June 2000 to June 2001. He attended UCLA and has a Bachelor Degree in Business Administration, Masters Degree, a General Secondary Teaching Credential and a Life Counseling Credential. He is a graduate of Southwest University of Law with honors.
Mr. Knerr has been married to his wife Colleen for 37 years and has two sons, David, age 27 and Michael, age 23.
Possible Concerns in the Preparation of Post-Nuptial Agreements.
Preparation of Post-nuptial Agreements (contracts between husbands and wives) are not common in the practice of family law. Practitioners should be aware when requested to prepare such an agreement to be attentive to the following issues.
Public Policy Constraints:
Marital agreements generally and historically (both pre-marital and marital agreements) that are deemed "promotive of dissolution" are unenforceable on public policy grounds. See Marriage of Dawley (1976) 17 C3rd 342; Marriage of Pendleton and Fireman (2000) 24 c4th 39. There is a distinction between agreements which "define property rights" versus agreements which "encourage dissolution." There is no public policy problem with agreements (whether executed before or during marriage) which simply define the spouse's property rights, thereby simplifying the issues and reducing the costs of a potential dissolution proceeding. Thus, marital agreements may validly transmute the character of property acquired before or during marriage (Family Code Section 850), and pre-marital agreements may validly preserve the separate property character of pre-marital assets and of income and property acquired after marriage ( Marriage of Higgason (1973) 10 C3rd 476.
In contrast, an agreement impermissibly "promotes", "encourages" or "facilitates" dissolution if it promises to give substantial value only in the event of divorce (Marriage of Noghrey (1985) 169 CA3rd 330 )
Post-Nuptial Agreement Content May Be Limited - Family Section Code 1620:
"Except as otherwise provided by law, a husband and wife cannot, by a contract with each other, alter their legal relations, "except as to property."
Property settlement agreements between spouses who are living apart seem to cause little problem. However, when the spouses contract while still living together, some policy considerations could be raised. Although implied, Family Code Section 1620 is limited to property. Case law does not necessarily support this inference. An early case Makzoume v.Makzoume (1942) 50 CA 2nd 229, specified that "law favors the making of settlement agreements between husband and wife if it can be accomplished fairly and equitably, untainted by fraud, collusion , undue influence or the like." The Law Revision Commission commentated that section 1620 does not purport to limit the statutory and case-law exceptions to the rule stated in the section. A more extensive list of exceptions to this rule includes, for example, Sections 3580 to 3592 (support agreements), Section 3651 ( modification or Termination of support Order if agreement between parties on support), section 4323 (Agreement Regarding Effect of Cohabitation on Spousal Support), etc.. Also, in light of the significant changes in the law regarding preparation of pre-nuptial agreements, the inclusion of a spousal support waiver in a post-nuptial agreement could be problematic.
Statutory Spousal Support Duty:
As a general rule, for so long as spouses are married and living together, they owe each other a mutual duty of support (Family Code Section 4300 and 4301). Further, the statutory duty of support (owed between spouses for so long as they are married and living together) cannot be contracted away, i.e., it is non-waivable. See Marriage of Higgason (1973) 10 C3rd 476. Thus, if the parties are living together, they cannot enter into an agreement waiving spousal support that is to become effective immediately. Because the marital support duty arises from the "marriage contract," a spouse's agreement to compensate the other in exchange for the giving up support is void as lacking consideration. "Personal performance of a personal duty created by the contract of marriage does not constitute a new consideration supporting the promise of compensation..." Borelli V Brusseau (1993) 12 CA4th 647.
The foregoing are just a few of the potential traps in drafting a Post-nuptial agreement.
