PRJO: Cultural Misunderstanding, Not Hostility to Premarital Agreements

[The following Comment by Hon. Phantom Retired Judicial Officer is in Response to to article by Abbas Hadjian, Esq., Cultural Gifts In The family Courts, published on Culture Counts June 26, 2010. Admin ]
Phantom Retired Judicial officer:
Cultural Differences And Misunderstanding
Underlies Many Decisions On Premarital Agreements

I’m reading your article now. Consider this a compilation of early comments, not a thorough or deeply considered reaction.

1. I pick nits. California’s Uniform Premarital Agreement Act, FC Sections 1600-1617, (i) has no hyphen and (ii) ought to be called “UPAA” for short, not” UMPA.”  Note that the UPAA was first adopted by California effective January 1, 1986 (see footnote 1 of IRMO Bellio (2003), which says this). Query whether any of your case law discussion applies to agreements executed prior to that date; such agreements are not covered by the UPAA in California. I haven’t thought my way through this, but let me throw out an idea.

2. The tone of your article conveys an impression of disappointment that all premarital agreements, and possibly post-marital agreements made at the time of the marriage, are not always enforceable. This impression may or may not be fair. Only you can tell me your actual view on this issue. In that connection, I throw out the idea that while cultural difference and cultural misunderstanding may underlie some or even many of the decisions in this area, this may be less than solely a manifestation of cultural differences than general hostility to premarital agreements.

I have the impression–I haven’t reviewed any of those cases before writing this email–why spoil a top-of-mind hypothesis by actually gathering facts?–that many cases holding that a prenuptial agreement is not enforceable do not have a discernible “cultural difference” component, i.e., the parties are not foreigners and are not members of a particular race, religion, nationality or ethnicity which are discernibly different from the majority culture. (How we define the majority culture and who is part of it is an interesting topic in its own right, and I don’t propose to define it precisely here.

My working model in my head consists of folks who could be the subject of Norman Rockwell Saturday Evening Post covers, but that model is really subject to serious revision.) If my impression is correct, appellate courts just don’t much like premarital agreements. Legislatures have responded by passing the Uniform Premarital Agreement Act, which in California is at Family Code Sections 1600-1617, or other acts dealing with the content and enforceability of premarital agreements, and by doing so tells courts that such agreements are permissible. The result has been more enforcement by courts of prenuptial agreements, but still courts are quick to find reasons not to enforce them.

This might be understood as holding that such agreements will not be enforced if they appear to be either promotive of divorce or otherwise offensive to some public policy, and cultural differences simply don’t explain all the cases in which prenuptial agreements are held not enforceable. (Again, treat all this as hypothetical, a thesis to be examined and either affirmed, rejected or modified, depending on what the research reveals.)

Heck, even the California Legislature is wary of such agreements. See FC 1612(c), which contains the very strange and problematic provision that a waiver of spousals support is not enforceable if that provision is unconscionable at the time of enforcement. So far as I know, except for this provision, hundreds of years of contract law hold that unconscionability of a contract is determined at the time of creation of the contract, not at the later time–and sometimes much later time–when a party seeks to enforce the contract. It’s not really the 9/19/2010 Untitled Document 1/2 subject of this email, but this provision makes it impossible to assure a client that he or she has effectively obtained a waiver of the right of the spouse-to-be to seek spousal support from the client in the event that the marriage ends in a dissolution rather than through the death of a spouse.

I suspect that the biggest problem with what you call executory cultural gifts is that they may very well be perceived as promotive of divorce. Noghrey is exactly that. That’s the problem with any agreement that conditions payment on divorce. Indeed, that might be a problem with provisions that make spousal support
begin only upon divorce, as contrasted, say, with an agreement that one spouse will pay $X a year to the other spouse whether they remain married or not (and I suppose you could successfully provide that expenditures during the marriage on the other spouse of at least $X will satisfy this obligation). And indeed any cliff vesting provisions might be promotive of divorce. I seem to recall Donald Trump’s premarital agreement with Marla Trump gave her a big chunk of change if the marriage lasted at least three years. Guess who dumped Marla in less than three years.
On the other hand, provisions for transfers of property at the time of the wedding are not in conflict with any public policy that I know of. (Stupidity is not against public policy.) I recall supervising the videotaped signing of a prenuptial agreement in which the husband gave the wife $10 million as soon as she married him,
unconditionally. She could divorce him the next day and the $10 million was hers. I think that provision would survive any attack.
I suspect I agree that an agreement that called for a nominal payment at the time of dissolution of marriage ought not to be found unenforceable. $1,700 is probably a nominal amount. But query when the amount is no longer nominal. What makes an extra dollar a tipping point between nominal and enough to be deemed promotive of divorce. $1,701? $5,000? $10,000? $50,000? $100,000? I can understand why an appellate court didn’t want to get into that can of worms.
Phantom Retired Judicial Officer

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