Posted on 12/30/2004 8:52:27 AM PST by Radix
In a possibly precedent-setting case, the state Appeals Court has ruled that an ex-wife is entitled to alimony even though she signed a prenuptial agreement waiving it.
Donna Austin was 37, and Craig Austin was 35 when they were married in May 1989, each for the second time. Two days before the wedding, Craig Austin presented Donna with a prenuptial agreement, which she signed, according to her attorney, Dana Curhan.
The Appeals Court upheld the portion of the prenuptial that protected assets Craig Austin had acquired before the wedding. But it said Donna Austin's waiver of alimony was not reasonable at the time she and Craig Austin signed the document.
``It was unreasonable to expect that his spouse, who then had no assets and negligible earning capacity, would contribute to the marriage by raising his child and by supporting his ability to work outside the home, with no expectation of future support, no matter how long the marriage, and regardless whether she might never acquire assets of her own,'' Justice Fernande Duffly wrote in the court's opinion.
Craig Austin's attorney, Jacob Atwood, said he will appeal the decision. Atwood said Donna Austin benefitted greatly by receiving ``hundreds of thousands of dollars'' in the division of property assets at the end of the Sandwich couple's 12-year marriage.
``I think this decision flies in the teeth of the DeMatteo case,'' Atwood said, referring to a 2002 Supreme Judicial Court decision upholding prenuptial agreements except in cases where one of the marital parties was left with an extreme hardship.
But Donna Austin's attorney said, ``The court is saying that by waiving her right to alimony, she was essentially waiving her future rights, which was not a realistic thing to do.''
You have to be able to PROVE it.
You have to hire a private investigator to show the lifestyle she leads exceeds her income and can only be made up with your support.
Then you go in front of the judge to get an order to have a FORENSIC accountant go over her books with a fine tooth to see exactly where the dollars went.
It IS an expensive proposition to prove a point. It is generally pursued if you are looking to change custody for cause.
Ah yes, but in the US it is illegal for a priest/pastor to perform a wedding withoug a marriage license. In parts outside the US this is not true.
It is the way my wife and I would have preferred it to improve tax and other legal money matters.
We wanted to be married in the eyes of God, but not the state.
Sorry I don't buy that either. Even though I agree witht he courts wisdom in this case. I don't buy into this helpless victim mentality. She had two days for buyers remorse to void the contract she but she didn't.
The only reason why I agree witht he courts decision in this case was because the circumstances of their living and wage earning potential changed drastically after the marriage.
I don't disagree with all you've said - however, in some instances, contracts can be tossed out wholesale, or have parts declared invalid by the courts for good reason. It happens everyday. I'm also sure that in some cases, it occurs for reasons that are not good...
I guess it all boils down to what the state has for laws regarding what is valid in a pre-nup, what is not, and how pre-nups have to be handled...
>>Let's face it - to expect a woman, who stayed home and raised your children and made a home for you, to just "move on" and be able to support herself after you tire of her is just wrong. Period. Anyone who says otherwise isn't much of a man.<<
Tow things: first, she actually acquired quite a bit of assets in the divorce settlement. Second, how do you know he dumped her, and not the other way around. Did you know that over 75% of divorces in the US are filed by the wife?
Third, the prenup was protecting his income when SHE WAS NO LONGER HIS WIFE.
>>the contract is void because one cannot give up ones constitutional rights, even if they agree to do so voluntarily.<<
Um, what constitutional rights exactly?
I am not sure I do either. I was just proposing a way someone could argue duress. I do not know if she was a helpless victim. Just wondering if that fact would change the perception.
It can be if, now that she's raised his kids, he sees no need for her anymore... (such as appears to be the case with the current court case being discussed)
What does she do then? Yeah, that would be the nightmare. But you already knew that.
But that's what no-fault unilateral divorce IS-government mandated and enforced breach of contract.
>>Speaking as someone who was divorced and got essentially nothing but debt from the marriage after 22 years of marriage. It was the typical roadhouse divorce: she got the house, I got the road.<<
Heh, heh. Welcome to the club brother...
And let me guess: She divorced you "without cause."
The Cato Institute has an older article, Restoring the Boundary: Tort Law and the Right to Contract (it's a PDF, Googled HTML translation here). It's very interesting, making you wonder why we have contracts in the first place.
You're one in a million, Red!
How is that "duress" by any reasonable definition of the word?
>>If this loser had not been a weasel, he would have told his "sweet-heart" right up front when they discussed marriage that he expected her to sign a preenup, what the general terms would be, and provide the documents for her review and signature as soon thereafter as possible.<<
And he may have. The article does not cover those subjects.
He's rich, she had nothing. I doubt she put up anything. In that case, it puts the pressure on him to not request the pre-nup -- he'll lose money if he delays.
It is not illegal to perform the ceremony without the license. It is just the marriage will not be recorded or recognized. The children will be "bastards" in the eyes of the law and all issues of paternity will have to be constantly proven.
HOWEVER if you live in a state which recognizes common law marriage you will be married. Also you will be married EVEN IF YOUR STATE DOES NOT HAVE COMMON LAW MARRAIGE because the state will recognize a marriage from a common law state for purposes of marraige.
Thus documenting the ceremony abroad will still put you in divorce court AS IF YOU HAD A LICENSE in the USA.
So your cleverness only gets you a bigger mess and a larger lawyer fee.
Amen, and amen, and amen.
RobRoy - I take it your 2nd marriage was a non-American type Woman ?
Two things - 1. I wasn't referring to this specific case when I said what I said (which you quoted). 2. It was speaking about a general circumstance (which should have been clear by what I said) so who left who in the actual court case is irelevent to what I said in the post you quoted...
Third, the prenup was protecting his income when SHE WAS NO LONGER HIS WIFE.
Yeah, well then I guess he needs to be looking at his lawyer's malpractice insurance...
Why is that duress?
What's the threat? That someone who doesn't trust you won't marry you in two days?
That's not a threat-it's a favor.
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