779
COMMENTS
To Agree or Not to Agree: Treatment of Postnuptial
Agreements Under Oklahoma Law
I. Introduction
The conversation where parents inform their children they are getting
divorced has become all-too-common in American homes. A recent
study revealed that in 2008, 7.1 out of 1,000 Americans got married,
while 3.5 out of every 1,000 Americans got divorced.
1
Further, studies
showed that between 41% to 50% of first marriages will end in divorce,
with the percentage increasing to between 60% to 67% of second
marriages, and 73% to 74% of third marriages.
2
With these statistics in
mind, the concern that prospective or current spouses may have for
individually defined property rights in the case of divorce is not so far-
fetched. Statistics support the conclusion that the use of prenuptial
agreements C agreements entered into before marriage C are on the rise
in America: in 2005 approximately 5,000 prenuptial agreements were
entered into per month, a significant jump from 1,500 in 2003.
3
When
spouses fail to execute an agreement before marriage, they often feel a
need to do so during marriage. This type of agreement is called a
postnuptial agreement. Postnuptial agreements are increasing in use as
well; according to a poll conducted by the American Academy of
Matrimonial Lawyers, the number of postnuptial agreements has
increased by 50% between the years of 2002B2007.
4
A postnuptial
agreement can take one of two forms: (1) modification of an existing
prenuptial agreement through a valid postnuptial agreement, or (2)
execution of a postnuptial agreement without a prior prenuptial
agreement.
1. CTRS. FOR DISEASE CONTROL AND PREVENTION, MARRIAGE & DIVORCE 1 (2009), http://
www.cdc.gov/nchs/fastats/divorce.htm. This divorce number, however, does reflect a
national low since 1970. Id.
2. Divorce Rate, 1 (2009), http://www.divorcerate.org/.
3. Jean Chatzky, For Richer or Poorer, Unless We Get Divorced (2006), http://
money.cnn.com/magazines/moneymag/moneymag_archive/2006/04/01/8373333/index.htm.
4. Robert DiGiacomo, Quit Fighting
B
Get a Postnuptial Agreement (2008), http://www.
cnn.com/2008/LIVING/personal/04/02/postnuptial.agreement/index.html. The primary
difference in the two forms of marital contracts hinges on the timing the agreement is
entered into. A prenuptial agreement is entered into before marriage, B
LACK'S LAW
DICTIONARY 1301 (9th ed. 2009), and a postnuptial agreement is an agreement that is made
after marriage. Id. at 1286.
780 OKLAHOMA LAW REVIEW [Vol. 63:779
Although technically different, both prenuptial and postnuptial
agreements share the common objective of defining the distribution of
property rights upon the dissolution of a marriage, through either death
or divorce. Despite this similarity, the two agreements have not
received the same treatment under the law. While prenuptial agreements
are valid in all fifty states, approximately twenty-two states have
addressed whether postnuptial agreements are valid C with the majority
finding they are valid.
5
Of the states that do not recognize postnuptial
agreements, there does not appear to be any single common variable as
to why such agreements are invalid.
A simple hypothetical helps to illustrate a typical situation where a
postnuptial agreement might be employed and demonstrates the
uncertainties surrounding its treatment under the law. Suppose Matthew
and Lisa, Oklahoma residents, enter into a valid prenuptial agreement
before their marriage. The prenuptial agreement includes two
provisions that deal with the distribution of property rights upon
divorce: (1) each spouse’s respective property acquired prior to marriage
will remain the sole property of that individual, (both during marriage
and upon divorce); and (2) in the event of divorce, each spouse will
retain a proportionate interest in property acquired after marriage based
on each spouse’s initial investment in the property.
After marriage, the couple decides to buy a house worth $500,000.
Matthew contributes $350,000 to the house C an investment equal to
5. The following states have addressed whether postnuptial agreements can be valid:
Alabama, Alaska, Arkansas, Arizona, California, Colorado, Florida, Illinois, Indiana,
Kansas, Kentucky, Massachusetts, Maryland, Michigan, Mississippi, Missouri, New York,
Ohio, South Dakota, Tennessee, Utah, and Wisconsin.
See ALA. CODE '' 30-4-9, 43-8-72
(West 2009); ALASKA STAT. ' 13.12.213 (West 2009); ARK. CODE ANN. '' 9-11-406, 9-11-
502 (West 2009); CAL. FAM. CODE ' 1500 (West 2009); COLO. REV. STAT. ANN. ' 15-11-
207 (West 2009); FLA. STAT. ANN. ' 732.702 (West 2009); 750 ILL. COMP. STAT. ANN.
5/502 (West 2009); KY. REV. STAT. ANN. ' 403.180(1) (West 2009); MASS. GEN. LAWS ANN.
Ch. 209, ' 2 (West 2009); MICH. COMP. LAWS ANN. ' 557.23 (West 2009); MISS. CODE ANN.
' 93-3-1 (West 2009); OHIO REV. CODE ANN. ' 3103.06 (West 2009); Tibbs v. Anderson,
580 So. 2d 1337, 1339 (Ala. 1991); In re Estate of Harber, 449 P.2d 7, 12 (Ariz. 1969);
Perkins v. Sunset Tel. & Tel. Co, 103 P. 190, 193-94 (Cal. 1909); In re Estate of Lewin, 595
P.2d 1055, 1057 (Colo. 1979); Flansburg v. Flansburg, 581 N.E.2d 430, 433 (Ind. Ct. App.
1991); Dunsworth v. Dunsworth, 81 P.2d 9, 12 (Kan. 1938); see Pearre v. Grossnickle, 114
A. 725, 728 (Md. 1921); Lipic v. Lipic, 103 S.W.3d 144, 149 (Mo. Ct. App. 2003);
Bronfman v. Bronfman, 229 A.D.2d 314, 315 (N.Y. App. Div. 1996); Keith v. Keith, 156
N.W. 910, 911 (S.D. 1916); Bratton v. Bratton, 136 S.W.3d 595 (Tenn. 2004); Pierce v.
Pierce, 994 P.2d 193, 198 (Utah 2000); Button v. Button, 388 N.W.2d 546, 550 (Wis. 1986).
While Oklahoma has addressed the issue, the case law on the validity of postnuptial
agreements is unclear. See infra nn. 7-9 and Part IV.
2011] COMMENTS 781
70% of the house’s value C and Lisa contributes the remaining
$150,000 C an investment equal to 30% of the house’s value. Thus,
under the second provision of the prenuptial agreement, Matthew would
receive 70% of the value of the property upon divorce and Lisa would
receive 30%. Now assume tension arises between the spouses. Lisa
becomes very fearful that in the event of divorce she will not be able to
support herself due to Matthew’s greater interest in their marital
property. Matthew does not want to see his wife worry, nor does he
believe that the couple’s marriage will end in divorce. In an attempt to
put all worries to rest, Matthew proposes making a postnuptial
agreement through an amendment to their prenuptial agreement. He
suggests the postmarital property be divided evenly (50% to him and
50% to Lisa) in the event of divorce.
6
Matthew and Lisa both feel good
about the proposed change to their prenuptial agreement. However, a
very important question crosses their minds: Can they legally use a
postnuptial agreement to alter their prenuptial agreement?
While this might appear to be a simple contractual issue C the couple
only wants to modify an existing contract C appearances are often
deceptive. Although postnuptial agreements contain characteristics of
an ordinary contract, determining whether traditional principles of
contract law govern such agreements is not as clear-cut as it might seem.
Two different Oklahoma courts have addressed this very issue,
7
reaching two very different determinations: one holding that spouses can
alter their property rights through postnuptial agreements,
8
and the other
holding that Oklahoma law does not allow spouses to alter their property
rights postnuptially.
9
This comment first explores the various legal principles used by
courts nationwide to determine the validity of postnuptial agreements.
This comment then discusses the applicability of those principles under
Oklahoma law. This comment argues that, although postnuptial
agreements are a special contract, much like their prenuptial
counterparts, postnuptial agreements can be valid, and basic principles
6. This is a simplified hypothetical, but it serves the purpose of highlighting a situation
when a couple might want to amend or modify a prenuptial agreement. Realistically,
situations surrounding modifications of prenuptial agreements are far more complex and
involve many factors and interests.
7. See, e.g., Hendrick v. Hendrick, 1999 OK CIV APP 15, 976 P.2d 1071 (Okla. Civ.
App. Div. 1 1998); Boyer v. Boyer, 1996 OK CIV APP 94, 925 P.2d 82 (Okla. Civ. App.
Div. 4 1996).
8. See Boyer, 1996 OK CIV APP 94, 925 P.2d 82.
9. See Hendrick, 1999 OK CIV APP 15, 976 P.2d 1071.
782 OKLAHOMA LAW REVIEW [Vol. 63:779
that govern the validity of prenuptial agreements should be applied to
the analysis required to determine whether individual postnuptial
agreements are valid. Further, this comment suggests requirements that
should be met in order to create a valid postnuptial agreement.
A firm grasp on the nature of prenuptial agreements is essential to
fully understanding the issues facing postnuptial agreements; thus, Part
II of this comment discusses the legal development of prenuptial
agreements through the United States. Part III provides a detailed
analysis of the historical development of postnuptial agreements in the
United States and the jurisprudence surrounding postnuptial agreements
nationwide. Part IV discusses Oklahoma’s current statutory and
common law relevant to postnuptial validity and presents the
contradictory stances taken by Oklahoma’s appellate courts. Part V
proposes justifications for why postnuptial agreements can and should
be valid under Oklahoma law, and then suggests specific requirements
to make a valid postnuptial agreement. This comment concludes in Part
VI by suggesting that Oklahoma establish clear precedent that
postnuptial agreements can be valid and detail what elements are
required to make a valid postnuptial agreement.
II. History of Prenuptial Agreements
A. Historical Background of Prenuptial Agreements
The development of prenuptial agreements within the United States
originated in the Statute of Uses, a seventeenth-century English law.
10
The Statute of Uses allowed a woman to waive her right to dower C that
is, to waive her right to receive a one-third interest in her husband’s
estate for life C upon the death of her husband.
11
Originally, a wife was
not considered an heir of her husband; thus, when a husband died the
wife had no interest in his estate and consequently, little means to
provide for herself.
12
The Statute of Uses effectively functioned as a
prenuptial agreement to waive a woman’s right to dower.
In the United States, statutes modeled after the Statute of Uses were
enacted that allowed a woman to waive her right to dower.
13
Prenuptial
10. See generally LAURA W. MORGAN & BRETT R. TURNER, ATTACKING AND DEFENDING
MARITAL AGREEMENTS 361-64 (2001).
11. See M
ORGAN, supra note 10, at 362.
12. J
OHN E. CRIBBET ET AL., PROPERTY CASES AND MATERIALS 324 (7th ed. 1996) (1960).
13. MORGAN, supra note 10, at 364; see also B. Bernard Wolson, Husband and
Wife
C
Antenuptial Contracts, 41 MICH. L. REV. 1133, 1134 (1943).
2011] COMMENTS 783
agreements that waived a woman’s right to dower were not initially
subjected to a high level of scrutiny.
14
For example, in Reiger v.
Schaible, the Supreme Court of Nebraska held that agreements that
waived the right to dower were valid as long as the agreement was fair,
equitable, and entered into in good faith.
15
Although such prenuptial
agreements were used solely to waive a woman’s right to dower, these
agreements would eventually be used to create, relinquish, or alter
property rights between prospective spouses.
16
Generally speaking, prenuptial agreements covering any right other
than the right to dower had a very weak existence before the Married
Women’s Property Act.
17
Most commentators agree that the Married
Women’s Property Act resulted in the modern form of the prenuptial
agreement, which began to receive acceptance in the legal community.
18
Before the nineteenth century, a husband would receive, upon marriage,
a substantial interest in all real and personal property his wife owned
before marriage.
19
Under the Married Women’s Property Act, however,
women were given the right to enter into contracts with respect to their
property because the act gave women an ownership interest in their
premarital and postmarital property.
20
Also enacted in the same time
period was the Earning Statute, which allowed women to work outside
of the home for a wage and to receive that wage themselves.
21
These
two acts gave women greater freedom and ability to negotiate with their
spouses when it came to defining marital-property rights.
Despite the changing legal landscape regarding marital contracts, the
ability of spouses to contractually define their property rights was not
widely accepted. For much of the history of prenuptial agreements, an
agreement contemplating divorce as the means of dissolution to
marriage (as opposed to death) was considered invalid as against public
policy.
22
Courts justified such positions by asserting that prenuptial
14. See Reiger v. Schaible, 115 N.W. 560 (Neb. 1908).
15. Id. at 566.
16. Irvine v. Irvine, 685 N.E.2d 67, 70 (Ind. Ct. App. 1997).
17. Married Women’s Property Act, 1882, c. 75, '' 1-27 (Eng.).
18. Suzanne D. Albert, The Perils of Premarital Provisions, 48 R.I.
B.J. 5, 5 (2000).
19. See C
AROLYN R. BARONE & ROBERT D. OSTER, DRAFTING AND LITIGATING
PRENUPTIAL AGREEMENTS IN RHODE ISLAND 3 (1996).
20. See B
ARONE & OSTER, supra note 19, at 3 (1996); see generally NORMA BAUSCH, IN
THE EYES OF THE LAW (1987).
21. See Katharine B. Silbaugh, Marriage Contracts and the Family Economy, 93 N
W. U.
L. REV. 65, 71 (1998).
22. Rebecca Glass, Trading Up: Postnuptial Agreements, Fairness, and a Principled
New Suitor for California, 92 C
AL. L. REV. 215, 221 (2004).
784 OKLAHOMA LAW REVIEW [Vol. 63:779
agreements that contemplated divorce would ruin the sanctity of
marriage and “lead to endless, minor litigation, and encourage the
property-owning spouse to desert the other spouse.”
23
Thus, the
common law approach to prenuptial agreements was skeptical and
paternalistic.
24
However, this began to subside with the continued
progression of women’s rights and treatment in society.
Given the rise of women’s equality, the number of women in the work
place, and the growing contractual rights of women,
25
the Florida
Supreme Court concluded in Posner v. Posner that prenuptial
agreements contemplating divorce were no longer per se void as against
public policy.
26
Other courts began to follow the trend established by
the Florida Supreme Court.
27
The adoption of the Uniform Premarital
Agreement Act (UPAA) in 1983 provided evidence of state legislatures
viewing prenuptial agreements in a different light.
28
The UPAA was an
attempt to establish conformity among states in treating prenuptial
agreements as simply a form of a contract.
29
The most notable right the
UPAA promulgated was that of prospective spouses to control their
marital contracts, specifically including a couple’s ability to control
property rights in virtually any situation not violating public policy.
30
23. Glass, supra note 22, at 92; see also Charles W. Gamble, The Antenuptial Contract,
26 U. MIAMI L. REV. 692, 704-05 (1971).
24. Allison A. Marston, Planning for Love: The Politics of Prenuptial Agreements, 49
S
TAN. L. REV. 887, 891 (1997); see also Estate of Burgess, 1982 OK CIV APP 22, & 10, 646
P.2d 623, 625.
25. Gail Frommer Brod, Premarital Agreements and Gender Justice, 6 Y
ALE J.L. &
FEMINISM 229, 253 (1994).
26. Posner v. Posner, 233 So. 2d 381, 285 (Fla. 1970).
27. See Brooks v. Brooks, 733 P.2d 1044, 1048 (Alaska 1987); Newman v. Newman, 653
P.2d 728 (Colo.1982); Scherer v. Scherer, 292 S.E.2d 662 (Ga. 1982); In re Bowen, 475
N.E.2d 690 (Ind. 1985); In re Adams, 729 P.2d 1151 (Kan. 1986); Gross v. Gross, 11 Ohio
St. 3d 99, 464 N.E.2d 500 (Ohio 1984).
28. The Uniform Premarital Agreement Act references & annotations, 9C U.L.A. 35
(2001), lists twenty-five states and the District of Columbia which adopted and enforced the
UPAA. The twenty-five states include: Arizona, Arkansas, California, Connecticut,
Delaware, Hawaii, Idaho, Illinois, Indiana, Kansas, Maine, Montana, Nebraska, Nevada,
New Jersey, New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, South
Dakota, Texas, Utah, and Virginia. Id. In Dematteo v. Dematteo, 762 N.E.2d 797, 809 n.28
(Mass. 2002), however, twenty-eight states and the District of Columbia are listed as
adopting and enforcing the UPAA. This footnote concludes that, along with the twenty-five
states listed above, four additional states have adopted and enforced the UPAA. Those four
states are: Iowa, Mississippi, West Virginia, and Wisconsin. Id.
29. Allison A. Marston, Planning for Love: The Politics of Prenuptial Agreements, 49
S
TAN. L. REV. 887, 899 (1997).
30. Unif. Premarital Agreement Act ' 3 (amended 2001), 9C U.L.A. 43 (1983).
2011] COMMENTS 785
Alongside growing acceptance of prenuptial agreements in different
contexts, requirements were imposed in order to create a valid
prenuptial agreement.
B. Legal Requirements of a Valid Prenuptial Agreement
Prenuptial agreements are simply contracts; therefore offer,
acceptance, and consideration must be present.
31
The elements of offer
and acceptance are normally non-issues; whereas consideration, an area
that once provided for dispute, is viewed as fulfilled by the marriage
itself.
32
There are generally four additional requirements of a valid
prenuptial agreement: (1) the agreement does not violate public policy;
(2) the agreement is entered into voluntarily; (3) there is a full and fair
disclosure of assets before signing an agreement; and (4) the agreement
is substantively fair and conscionable. It should be noted that not all
states require all the elements.
33
Normally states require some
combination of the following.
1. Public Policy
Prenuptial agreements may not violate public policy. One way a
prenuptial agreement may violate public policy is if the agreement
encourages divorce.
34
An agreement that denies a party a divorce if
31. Id. ' 2.
32. See Roberts v. Roberts, 802 So. 2d 230, 233 (Ala. Civ. App. 2001); Eule v. Eule, 320
N.E.2d 506, 509 (Ill. Ct. App. 1974); Watson v. Watson, 497 A.2d 794, 801 (Md. 1984);
Matter of Burgess’ Estate, 1982 OK CIV APP 22, & 16, 646 P.2d 623, 626 (Okla. Civ. App.
1982); Bratton v. Bratton, 136 S.W.3d 595, 600 (Tenn. 2004); Friedlander v. Friedlander,
494 P.2d 208, 300 (Wash. 1972).
33. See Griffin v. Griffin, 2004 OK CIV APP 58, 94 P.3d 96, 99 (holding an agreement
must either be fair and reasonable from the position of the party opposing enforcement, or
there must be a full and fair disclosure of the other party’s financial position); Chiles v.
Chiles, 779 S.W.2d 127 (Tex. App. 1989) (holding whether a prenuptial agreement is fair is
immaterial to determining enforceability of such agreement), rev’d on other grounds, 790
S.W.2d 819 (Tex. App. 1990); Dexter v. Dexter, 371 S.E.2d 816 (Va. Ct. App. 1988)
(holding pre- or postnuptial agreements can be void if against public policy).
34. R
ESTATEMENT (SECOND) OF CONTRACTS ' 190(2) (1981). A contract that tends to
encourage divorce is unreasonable as against public policy. See In re Noghrey, 215 Cal.
Rptr. 153 (Ct. App. 1985) (holding an agreement that gave a wife certain assets that were
large in comparison to the marital estate was invalid); Dexter, 371 S.E.2d 816 (stating in
dicta a clause of a marital agreement that required husband to pay wife $1,000 per month
upon separation or divorce that was large in comparison to the marital estate is
unenforceable); Coggins v. Coggins, 601 So. 2d 109 (Ala. Civ. App. 1992) (holding a
prenuptial agreement that encouraged divorce by awarding one party a disproportionate
share of the marital estate was invalid).
786 OKLAHOMA LAW REVIEW [Vol. 63:779
grounds exist for divorce, however, is also against public policy.
35
Other situations may exist where a prenuptial agreement may be void as
violating public policy.
36
For example, in Favort v. Barnes, a Louisiana
appellate court held that a prenuptial agreement that attempted to control
the behavior of spouses by limiting sexual intercourse to once a week
was unenforceable.
37
Also, in In Re Marriage of Fox, a Washington
appellate court held it was against public policy, and thus unenforceable,
for prenuptial agreements to affect visitation or child support rights.
38
Some state legislatures have cleared any confusion surrounding what
kind of agreements may violate public policy by simply holding that a
prenuptial agreement cannot be held void solely due to public policy
concerns.
39
2. Voluntary Execution
Prenuptial agreements must be entered into and executed voluntarily
in order to be upheld as valid.
40
Courts hold that spouses maintain a
confidential relationship when entering into a prenuptial agreement.
41
This presumption of a confidential relationship in prenuptial agreements
is of unique importance because it confers the status of a special
contract.
42
Traditionally, when parties sign a business contract it is
35. Towles v. Towles, 182 S.E.2d 53 (S.C. 1971).
36. See Lacks v. Lacks, 189 N.E.2d 487 (N.Y. 1963) (holding a prenuptial agreement
was not enforceable because it purported to establish term where one spouse was to pay the
other); Boyer v. Boyer, 1996 OK CIV APP 94, 925 P.2d 82 (Okla. Civ. App. Div. 4 1996)
(holding the agreement cannot change a spouse’s duty to support the other spouse).
37. See Favort v. Barnes, 332 So. 2d 873 (La. Ct. App. 1976).
38. See In Re Marriage of Fox, 795 P.2d 1170 (Wash. Ct. App. 1990).
39. See Griffin v. Griffin, 2004 OK CIV APP 58, & 11, 94 P.3d 96, 99 (interpreting the
effects of the state legislature’s amendment to the pertinent statute as having the effect of
creating no public policy bar to prenuptial agreements).
40. McHugh v. McHugh, 436 A.2d 8 (Conn. 1980).
41. See Hamilton v. Hamilton, 51 So. 2d 13, 188 (Ala. 1950); Burnes v. Burnes, 157
S.W.2d 24, 27 (Ark. 1942); Linker v. Linker, 470 P.2d 921 (Colo. Ct. App. 1970); Lutgert v.
Lutgert, 338 So. 2d 1111, 1115 (Fla. Dist. Ct. App. 1976); Watson v. Watson, 126 N.E.2d
220, 222 (Ill. 1955); Christians v. Christians, 44 N.W.2d 431, 433 (Iowa 1950); Martin v.
Farber, 510 A.2d 608 (Md. Ct. Spec. App. 1986); Estate of Serbus v. Serbus, 324 N.W.2d
381, 385 (Minn. 1982) (overruled on the ground that lack of an opportunity to consult with
independent counsel does not automatically cause a prenuptial agreement to valid); Manhart
v. Manhart, 1986 OK 12, & 30, 725 P.2d 1234, 1238-39; Button v. Button, 388 N.W.2d 546,
550 (Wis. 1986).
42. See Hamilton, 51 So. 2d at 188; Burnes, 157 S.W.2d at 27; Linker, 470 P.2d 921;
Lutgert, 338 So. 2d at 1115; Watson, 126 N.E.2d at 222; Christians, 44 N.W.2d at 433;
Martin, 510 A.2d 608; Estate of Serbus, 324 N.W.2d at 385; Manhart, & 30, 725 P.2d at
1238-39; Button, 388 N.W.2d at 550.
2011] COMMENTS 787
assumed each party has considered his best interests and acted in a
manner consistent with those interests.
43
When prospective spouses
decide to enter into a prenuptial agreement, however, those spouses may
not be thinking in terms of their best interest but instead may be driven
by their emotions.
44
The law combats this potential lack of self-interest by holding that
prospective spouses are in a confidential relationship.
45
This
confidential relationship imposes upon the parties the duty to act as
fiduciaries.
46
Although the meaning of “fiduciary relationship” is
vague, it appears that the requirement is not as concerned with
substantive fairness as it is with procedural fairness.
47
For example, in
Sumpter v. Kosinski, a Michigan appellate court held that disparity of
prenuptial provisions alone would not invalidate the agreement.
48
With
respect to procedural fairness, courts require that an agreement be
entered into voluntarily to satisfy the fiduciary duty.
49
Courts consider
three elements when determining if an agreement is voluntary: (1) time
given to sign the agreement; (2) ability to consult independent counsel;
and (3) presence of fraud, misrepresentation, and duress.
50
Spouses must be given a fair amount of time to sign a prenuptial
agreement.
51
The primary focus of this requirement revolves around
when a prenuptial agreement is presented to a spouse to sign and when
the agreement must ultimately be signed.
52
For example, in both Ohio
and Florida courts determined that a prenuptial agreement was not
entered into voluntarily because the wife did not know about the
43. See MORGAN, supra note 10, at 396 (2001).
44. See Sumpter v. Kosinski, 419 N.W.2d 463, 471 (Mich. Ct. App. 1988) (finding when
individuals are dealing with matters of the heart often times the advice of legal counsel is
often disregarded).
45. See Hamilton, 51 So. 2d at 188; Burnes, 157 S.W.2d at 27; Linker, 470 P.2d 921;
Lutgert, 338 So. 2d at 1115; Watson, 126 N.E.2d at 222; Christians, 44 N.W.2d at 433;
Martin, 510 A.2d 608; Estate of Serbus, 324 N.W.2d at 385; Manhart, & 30, 725 P.2d at
1238-39; Button, 388 N.W.2d at 550.
46. See Estate of Serbus, 324 N.W.2d at 385 (describing the relationship of the parties as
having a fiduciary duty with one another); Watson, 126 N.E.2d at 222 (describing the
relationship between spouses as one of either confidence or fiduciary).
47. See Sumpter, 419 N.W.2d 463
48. Id.
49. See In re Estate of Lutz, 1997 ND 82, 563 N.W.2d 90 (N.D. 1997).
50. See Zimmie v. Zimmie, 464 N.E.2d 142 (Ohio 1984); In re Estate of Lutz, & 34, 563
N.W.2d 90; Ferry v. Ferry, 586 S.W.2d 782 (Mo. Ct. App. 1979).
51. See Plant v. Plant, 320 So. 2d 455, 457-59 (Fla. Dist. Ct. App. 1975).
52. Zimmie, 464 N.E.2d 142
788 OKLAHOMA LAW REVIEW [Vol. 63:779
agreement, or was not presented with the agreement until the day before
the couple was to be married.
53
The nature of the first element of voluntariness C providing a
reasonable time between presenting a prenuptial agreement and the
required signing date C is directly related to the second element
considered when determining voluntariness. The lack of an opportunity
to consult independent counsel
54
about a prenuptial agreement “is a
significant factual factor in weighing the voluntariness” of the
agreement.
55
It is the opportunity to consult independent counsel that is
important in this analysis, as opposed to the actual presence of
independent counsel when a prenuptial agreement is signed.
56
For example, in Warren v. Warren, the wife challenged the validity of
a prenuptial agreement upon the dissolution of her marriage with her
husband.
57
The wife claimed she was coerced into signing the
agreement; however, the court found this claim unpersuasive.
58
Upholding the prenuptial agreement, the court noted the wife had two
months of ample opportunity to seek independent counsel C but chose
not to.
59
By contrast, if a spouse never had an opportunity to consult
independent counsel, then a prenuptial agreement will be considered
involuntary, and thus, the agreement will be unenforceable.
60
The last element of the voluntariness inquiry involves an absence of
fraud, misrepresentation, or duress surrounding the signing of a
prenuptial agreement.
61
Prenuptial agreements that have been declared
53. Id.; Plant, 320 at, 457-59; see also Roberts v. Roberts, 802 So. 2d 230, 233-34 (Ala.
Civ. App. 2001).
54. Independent counsel means counsel of that spouse’s own choosing. Lutgert v.
Lutgert, 338 So. 2d 1111, 1115 (Fla. Dist. Ct. App. 1976). Consulting with the counsel of the
spouse presenting the prenuptial agreement does not constitute independent counsel. See id.
55. In re Estate of Lutz, 1997 ND 82, 563 N.W.2d 90, 98 (N.D. 1997).
56. Rhyne-Morris v. Morris, 671 So. 2d 748 (Ala. Civ. App. 1995) (holding the absence
of independent counsel is not determinative when analyzing the validity of a prenuptial
agreement); see Cannon v. Cannon, 846 A.2d 1127 (Md. Ct. Spec. App. 2004), cert. granted,
855 A.2d 349 (Md. 2004) and judgment aff’d, 865 A.2d 563 (Md. 2005) (standing for the
proposition that a spouse is not required to actually consult independent counsel for a
prenuptial agreement to be valid).
57. Warren v. Warren, 523 N.E.2d 680, 681-82 (Ill. Ct. App. 1988).
58. Id. at 683.
59. Id.
60. McMullin v. McMullin, 926 S.W.2d 108 (Mo. Ct. App. 1996) (holding the prenuptial
agreement was unenforceable because the wife was never given the opportunity to meet with
independent counsel).
61. See Ferry v. Ferry, 586 S.W.2d 782 (Mo. Ct. App. 1979); Ex Parte Williams, 617 So.
2d 1033 (Ala. 1992).
2011] COMMENTS 789
void based on either fraud or misrepresentation often deal with
situations where one spouse is presented a prenuptial agreement with
little time to review its contents and the presenting spouse promises to
change certain terms or provisions of the agreement after it is signed.
62
In Ferry v. Ferry, the court found the prenuptial agreement void when a
wife signed the agreement without independent counsel and in reliance
on a promise by the husband to change certain terms of the agreement
after marriage.
63
Just as duress is a defense to the enforcement of a traditional contract,
it is also a defense to the enforcement of a prenuptial agreement.
64
Duress most frequently arises in the prenuptial agreement context when
the woman is pregnant at the time the prenuptial agreement is
presented.
65
Pregnancy, however, does not constitute duress per se;
rather, the presence of duress must be determined on a case-by-case
basis.
66
For example, in Hamilton v. Hamilton, the Pennsylvania
Superior Court concluded that a prenuptial agreement was not signed
under duress despite the wife’s pregnancy at the time of signing because
she had received advice of independent counsel and disregarded that
advice.
67
Conversely, a man’s refusal to marry his pregnant fiancé
unless she signed a prenuptial agreement, coupled with the woman’s
desire to maintain credibility within the community despite her
extramarital pregnancy, led one court to find duress was present.
68
3. Full and Fair Disclosure
Generally spouses are required to make a full and fair disclosure of
their respective financial conditions before a prenuptial agreement is
signed.
69
This requirement contains two distinct parts. First, spouses
are typically required to disclose the nature of their assets to one
another, such as whether investments are made in stocks, bonds or
property.
70
Second, there must be a full and fair disclosure of an
62. See Ferry, 586 S.W.2d at 783.
63. Id. at 783, 786-88.
64. See Ex Parte Williams, 617 So. 2d 1033.
65. See id.
66. See Hamilton v. Hamilton, 591 A.2d 720 (Pa. 1991).
67. Id.
68. Ex Parte Williams, 617 So. 2d 1033.
69. See Wylie v. Wylie, 459 S.W.2d 127 (Ark. 1970); In re Marriage of Lewis, 808
S.W.2d 919 (Mo. Ct. App. 1991).
70. King v. King, 66 S.W.3d 28, 35 (Mo. Ct. App. W.D. 2001); Matter of Benker’s
Estate, 331 N.W.2d 193, 196-97 (Mich. 1982).
790 OKLAHOMA LAW REVIEW [Vol. 63:779
estimation of one’s assets;
71
however, this does not require an exact
determination of net worth.
72
Similarly, the disclosure does not require
each party to offer a detailed list of the nature of each asset individually,
such as “financial statements of net worth and income . . . .”
73
Rather,
simply a list placing assets into general categories will suffice.
74
As
long as a spouse is given information that represents a general
approximation of the other spouse’s net worth, a full disclosure has
occurred.
75
Where a disclosure is not made or is not full and fair, the
prenuptial agreement will be held void.
76
For example, in Wylie v. Wylie, the husband represented that he was
only worth $200,000, when in fact he was actually worth closer to
$475,500.
77
Finding the prenuptial agreement invalid, the Arkansas
Supreme Court noted that not only did the wife not know the value of
the husband’s estate at the time the agreement was signed, but the
husband acted affirmatively to hide his wealth when he “endeavored to
prevent her from knowing his actual worth.”
78
Similarly, in In re
Marriage of Lewis, a Missouri appellate court found a husband’s
disclosure to be inadequate where he disclosed only a list of the assets
and not values, concluding that the wife could not have known or
guessed the assets’ values.
79
The duty of prospective spouses to act as fiduciaries, created through
the presumed confidential relationship, raises another caveat in the full
and fair disclosure requirement. Unlike typical contracts, it is generally
recognized that each spouse has an affirmative duty to make a full and
fair disclosure C it is not seen as the duty of the other spouse to request
a disclosure of the other’s assets.
80
Although the burden to disclose
71. King, 66 at 35; Colonna v. Colonna, 791A.2d 353, 355 (Pa. 2001).
72. Griffin v. Griffin, 2004 OK CIV APP 58, & 33-34, 94 P.3d 96, 104 (Okla. Civ. App.
2004), cert. denied, (May 24, 2004); see also Nanini v. Nanini, 802 P.2d 438 (Ariz. Ct. App.
1990).
73. In re Estate of Hill, 335 N.W.2d 750, 753 (Neb. 1983); see Laird v. Laird, 597 P.2d
463, 468 (Wyo. 1979).
74. Id.
75. Griffin, & 33-34, 94 P.3d at 104.
76. See Wylie v. Wylie, 459 S.W.2d 127, 128-29 (Ark. 1970); In re Marriage of Lewis,
808 S.W.2d 919, 922 (Mo. Ct. App. 1991).
77. Wylie, 459 S.W.2d at 128-29.
78. Id. at 130. Evidence of different circumstances was provided to show the husband
took active steps to keep his wife from being a part of any discussions of his actual worth.
79. In re Marriage of Lewis, 808 S.W.2d at 922.
80. In re Estate of Lebsock, 618 P.2d 683, 687 (Colo. Ct. App. 1980); Hjortaas v.
McCabe, 656 So. 2d 168, 170 (Fla. Dist. Ct. App. 1995); Ryken v. Ryken, 461 N.W.2d
2011] COMMENTS 791
assets is an affirmative duty placed on both spouses, a prenuptial
agreement normally will not be ruled invalid simply because one party
claims the other did not take affirmative action to make a disclosure of
their assets.
81
A failure to disclose assets, without more, will not
support a finding of fraud or execution of undue influence without
additional proof to support such a claim.
82
4. Substantive Fairness and Conscionability
The requirement of substantive fairness and conscionability of a
prenuptial agreement is concerned with the fairness of the agreement
itself.
83
The scope of this requirement varies among states. States that
have adopted the UPAA require a party to show both a full and fair
disclosure of assets and that a prenuptial agreement is substantively fair
and conscionable.
84
Alternatively, states that have not adopted the
UPAA may allow a party to show either that the agreement was fair,
just, and equitable from the other party’s perspective or that the second
party voluntarily entered into the agreement with full knowledge of the
first party’s estate and advice from independent counsel.
85
Many states have adopted either a test that holds a prenuptial
agreement must be substantively “fair”
86
or one that holds it must be
substantively “conscionable.”
87
Although the difference in the two
terms is often just one of degree, it can also be an important distinction
in certain situations C what might qualify as “unfair” may still be
classified as “conscionable.” Whether the court employs a test based on
fairness or conscionability, a number of the following factors are
normally considered by the courts: the assets owned by each party, the
experience or intelligence of each party, each party’s respective standard
of living during the marriage, the purpose of the agreement, the length
122,125 (S.D. 1990).
81. Freiman v. Freiman, 680 N.Y.S.2d 797, 799 (Sup. Ct. 1998).
82. Id.
83. See Estate of Harber v. Staley, 449 P.2d 7, 16 (Ariz. 1969); Burtoff v. Burtoff, 418
So. 2d 1085 (D.C. 1980); Lewis v. Lewis, 748 P.2d 1362 (Haw. 1988); Sande v. Sande, 360
P.2d 998, 1001 (Idaho 1961); Rose v. Rose, 526 N.E.2d 231 (Ind. Ct. App. 1988); Button v.
Button, 388 N.W.2d 546 (Wis. 1986).
84. Estate of Harber, 449 P.2d at 16; Sande, 360 P.2d at 1001; see also Morgan, supra
note 10, at 419.
85. Tibbs v. Anderson, 580 So. 2d 1337, 1339 (Ala. 1991); Estate of Lewin v. First Nat’l
Bank of Denver, 595 P.2d 1055, 1058 (Colo. App. 1979); Casto v. Casto, 508 So. 2d 330,
334 (Fla. 1987).
86. Burtoff, 418 So. 2d 1085; Button, 388 N.W.2d 546.
87. Lewis, 748 P.2d 1362; Rose, 526 N.E.2d 231.
792 OKLAHOMA LAW REVIEW [Vol. 63:779
of the marriage, each party’s premarital property, and the type of
property acquired during marriage.
88
III. Postnuptial Agreements
A. Historical Development of Postnuptial Agreements
At common law, postnuptial agreements were invalid but were often
enforced in courts of equity.
89
Postnuptial agreements were void at
common law because they traditionally sought to waive rights that had
not accrued C a woman’s right to dower.
90
Additionally, when two
individuals were married they were no longer viewed as two separate
individuals, but were merged into one, and a person cannot make a
contract with himself.
91
Further, postnuptial agreements were void as
against public policy because they promoted divorce.
92
Similarly, a
postnuptial agreement that attempted to release one spouse from her
legal obligation to support the other was void.
93
Many of the same forces that led to the legal acceptance of prenuptial
agreements also led to the legal enforceability of postnuptial
agreements, although at a much slower pace.
94
Specifically, the
development of the Married Women’s Property Act and changing
societal views of women led a majority of the courts that confronted the
validity of postnuptial agreements to consider such agreements valid
under respective state law.
95
Courts also began to change their
perspective on the nature of marriage by encouraging parties to settle
their disputes privately.
96
Although not as commonly used as prenuptial
88. See generally Del Vecchio v. Del Vecchio, 143 So. 2d 17, 20 (Fla. 1962); In re
Estate of Hildegass, 244 A.2d 672, 675-76 (Pa. 1968); Button, 388 at 551-52.
89. Ficklin’s Adm’r v. Rixey, 17 S.E. 325, 326 (Va. 1893); see also Ruling Case Law 600
(9th ed. 1915).
90. Merchants’ Nat. Bank of Mobile v. Hubbard, 133 So. 723, 727 (Ala. 1931).
91. Butterfield v. Stanton, 44 Miss 15 (Miss. Oct Term 1870); see Bendler v. Bendler, 69
A.2d 302, 305 (N.J. 1949); 1 B
LACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 445
(Cooley 3d. ed. 1884).
92. Cumming v. Cumming, 102 S.E. 572, 576 (Va. 1920) (stating such in dicta); In re
Cooper’s Estate, 403 P.2D 984, 987-88 (Kan. 1965).
93. Robbins v. Continental Nat. Bank & Trust Co. of Chicago, 58 N.E.2d 254, 259 (Ill.
App. Ct. 1944).
94. See Ronald B. Standler, P
RENUPTIAL AND POSTNUPTIAL CONTRACT LAW IN THE USA,
Sept. 12, 2009, http://www.rbs2.com/dcontract.pdf.
95. See Paul Brewer, Family Law
C
Bratton v. Bratton: The Tennessee Supreme Court
Considers Postnuptial Agreements and Allows Married Parties to Agree That They May
Eventually Disagree, 35 U.
MEM. L. REV. 579, 581-82 (2005);
96. Bronfman v. Bronfman, 229 A.D.2d 314, 315 (N.Y. App. Div. 1996).
2011] COMMENTS 793
agreements, postnuptial agreements have become a means of addressing
a very practical problem among spouses: a lack of foresight.
When spouses are engaged and have not weathered the challenges
presented by marriage, they often do not consider the hardships that can
arise during marriage, or they might not be able to foresee specific
situations as potential problems.
97
Postnuptial agreements commonly
become a means of resolution for tensions that arise from unforeseen
problems. For example, one of the most typical difficulties spouses face
involves marital finances.
98
Tension can arise when one or both spouses
have either a substantial increase (examples might range from the
common C new business success or inheritance C to the uncommon C
winning the lottery) or decrease in net worth (usually through some form
of mounting debt). Regardless of the couple’s specific reasons for
entering into a postnuptial agreement, all agreements share one attribute:
the agreement serves as a means to control one’s financial situation and
provides a level of certainty and peace of mind.
Postnuptial agreements are also desirable because many couples view
a prenuptial agreement as admitting the possibility of divorce, and thus
they choose to forego the opportunity to execute a prenuptial agreement,
only to determine later in marriage that some kind of marital contract
would be very beneficial. Engaged couples often view life through the
lens of romanticism rather than realism. Thus, many do not consider the
potential need for a prenuptial agreement. Given the current trends
within American jurisprudence, many couples are afforded the
opportunity to enter into an agreement, very similar to a prenuptial
agreement, after they are married. Postnuptial agreements allow couples
to tailor the agreement to their specific needs through first-hand
experience.
B. Current Legal Treatment Nationwide
Approximately twenty-two states have clearly addressed the validity
of postnuptial agreements.
99
States have recognized postnuptial
97. Sean Hannon Williams, Postnuptial Agreements, 2007 WIS. L. REV. 827, 828 (2007).
98. See Susan Berfield, Does your Marriage Need a Postnup?, B
US. WK., Oct. 2, 2009,
at 80 (providing an example of a postnuptial agreement that was entered into due to financial
tensions).
99. Alabama, Alaska, Arkansas, Arizona, California, Colorado, Florida, Illinois, Indiana,
Kansas, Kentucky, Massachusetts, Maryland, Michigan, Mississippi, Missouri, New York,
Ohio, South Dakota, Tennessee, Utah, and Wisconsin. See A
LA. CODE '' 30-4-9, 43-8-72
(West 2009); ALASKA STAT. ' 13.12.213 (West 2009); ARK. CODE ANN. '' 9-11-406, 9-11-
502 (West 2009); CAL. FAM. CODE ' 1500 (West 2009); COLO. REV. STAT. ANN. ' 15-11-
794 OKLAHOMA LAW REVIEW [Vol. 63:779
agreements either through judicial channels or through state
legislatures.
100
Although the two methods might initially appear
separate, they are often intertwined when determining the validity of
postnuptial agreements.
101
One group of state legislatures has created
specific statutory provisions addressing whether a postnuptial agreement
can detail the distribution of marital property upon dissolution of a
marriage.
102
A different group of state legislatures has attempted to
address the issue, but has failed to establish clear principles detailing
how postnuptial agreements should be treated, thus requiring the state’s
judicial branch to ultimately make a determination of the issue.
103
Still a
third group of state legislatures has declined to address the issue
entirely, leaving the judiciary responsible for determining the validity of
postnuptial agreements.
104
For purposes of this comment, the discussion
207 (West 2009); FLA. STAT. ANN. ' 732.702 (West 2009); 750 ILL. COMP. STAT. ANN.
5/502 (West 2009); KY. REV. STAT. ANN. ' 403.180(1) (West 2009); MASS. GEN. LAWS ANN.
Ch. 209, ' 2 (West 2009); M
ICH. COMP. LAWS ANN. ' 557.23 (West 2009); MISS. CODE ANN.
' 93-3-1 (West 2009); OHIO REV. CODE ANN. ' 3103.06 (West 2009); Tibbs v. Anderson,
580 So. 2d 1337, 1339 (Ala. 1991); In re Estate of Harber, 449 P.2d 7, 12 (Ariz. 1969);
Perkins v. Sunset Tel. & Tel. Co, 103 P. 190, 193-94 (Cal. 1909); In re Estate of Lewin, 595
P.2d 1055, 1057 (Colo. 1979); Flansburg v. Flansburg, 581 N.E.2d 430, 433 (Ind. Ct. App.
1991); Dunsworth v. Dunsworth, 81 P.2d 9, 12 (Kan. 1938); see Pearre v. Grossnickle, 114
A. 725, 728 (Md. 1921); Lipic v. Lipic, 103 S.W.3d 144, 149 (Mo. Ct. App. 2003);
Bronfman v. Bronfman, 229 A.D.2d 314, 315 (N.Y. App. Div. 1996); Keith v. Keith, 156
N.W. 910, 911 (S.D. 1916); Bratton v. Bratton, 136 S.W.3d 595 (Tenn. 2004); Pierce v.
Pierce, 994 P.2d 193, 198 (Utah 2000); Button v. Button, 388 N.W.2d 546, 550 (Wis. 1986).
100. For example, Ohio and Illinois have dealt with this problem through legislative
channels, whereas Arizona, Kansas, and Maryland have used judicial channels to resolve the
problem. See id.
101. Each of the following states has statutes and case law that help resolve the issue:
Alabama, Alaska, Arkansas, California, Colorado, Florida, Kentucky, Massachusetts,
Michigan, and Mississippi. See A
LA. CODE '' 30-4-9, 43-8-72; ALASKA STAT. ' 13.12.213;
A
RK. CODE ANN. '' 9-11-406, 9-11-502; CAL. FAM. CODE ' 1500; COLO. REV. STAT. ANN. '
15-11-207; FLA. STAT. ANN. ' 732.702); KY. REV. STAT. ANN. ' 403.180(1); MASS. GEN.
LAWS ANN. Ch. 209, ' 2; MICH. COMP. LAWS ANN. ' 557.23; MISS. CODE ANN. ' 93-3-1;
Tibbs, 580 So. 2d at 1339; Perkins, 103 P. at 193-94; In re Estate of Lewin, 595 P.2d at
1057.
102. See 750 I
LL. COMP. STAT. ANN. 5/502; OHIO REV. CODE ANN. ' 3103.06.
103. See Tibbs, 580 So. 2d at 1339 (using ALA. CODE ' 43-8-72 as support for the
proposition that postnuptial agreements are valid under Alabama law); In re Estate of Lewin,
595 P.2d at 1057 (relying on C
OLO. REV. STAT. ANN. ' 15-11-204 to support the conclusion
that spouses can enter into postnuptial agreements).
104. In re Estate of Harber, 449 P.2d at 15-16 (holding spouses have the right to
contract with each other regarding property through a postnuptial agreement); Matlock v.
Matlock, 576 P.2d 629, 633 (Kan. 1978) (holding that spouses can use a postnuptial
agreement to determine property rights between each other); Pearre, 114 A. at 728
(justifying the validity of postnuptial agreement by finding that women can waive their right
2011] COMMENTS 795
of states that have addressed the validity of postnuptial agreements are
divided into three categories: (1) states with a statute clearly on point,
(2) states relying on a judicial interpretation of a state statute, and (3)
states dependent solely on judicial determination.
1. State Statute Clearly On Point
Several states have explicitly addressed the validity of postnuptial
agreements through enactment of statutes, eliminating the need for
judicial interpretation to clarify the intent of such statutes.
105
The
unambiguous language of these statutes results in little need to litigate
issues surrounding such statutes, thereby effectively precluding any case
law on the subject.
106
Ohio serves as an example of a state that has a statute with
unambiguous language.
107
Ohio’s statute reads: “A husband and wife
cannot, by any contract with each other, alter their legal relations . . .
.”
108
Because of the clear language of this statute, very few cases even
address the validity of postnuptial agreements in Ohio, and in the few
instances where the issue has come before an Ohio court, the courts have
simply held that postnuptial agreements violate Ohio statutory law and
are therefore invalid.
109
The Ohio cases do not offer any analysis or
reasoning of the legislature’s intent to hold postnuptial agreements
invalid.
110
Further, there is no legislative history available to explain
why the legislature chose to ban postnuptial agreements under Ohio law.
Illinois is another state that has a statute with unambiguous language;
however, unlike Ohio, Illinois permits postnuptial agreements.
111
The
relevant Illinois statute states: “[T]o promote amicable settlement of
disputes between parties to a marriage attendant upon the dissolution of
their marriage, the parties may enter into a written or oral agreement
to dower pre- or postnuptially).
105. 750 I
LL. COMP. STAT. ANN. 5/502; OHIO REV. CODE ANN. ' 3103.06.
106. The only cases dealing with postnuptial agreements that have come before Illinois
courts involve factual issues of the postnuptial agreement. See Marriage of Richardson, 606
N.E.2d 56 (Ill. App. Ct. 1992); Matter of Estate of Brosseau, 531 N.E.2d 158 (Ill. App. Ct.
1988). Ohio courts have clearly held postnuptial agreements invalid as violating Ohio’s
statutory law. See Brewsaugh v. Brewsaugh, 491 N.E.2d 748, 750 (1985).
107. O
HIO REV. CODE ANN. ' 3103.06.
108. Id.
109. Brewsaugh, 491 N.E.2d at 750; see Hoffman v. Dobbins, 2009 WL 3119635 (Ohio.
App. 2009); Howard v. Howard, 1989 WL 109745 (Ohio App. 1989); Burgin v. Burgin,
1987 WL 15090 (Ohio App. 1987).
110. See Brewsaugh, 491 N.E.2d 748.
111. 750 I
LL. COMP. STAT. ANN. 5/502 (West 2009).
796 OKLAHOMA LAW REVIEW [Vol. 63:779
containing provisions for disposition of any property owned . . . .”
112
Again, there are no judicial opinions that support or offer analysis as to
why the legislature intended to recognize postnuptial agreements.
113
2. State Statute Plus Judicial Interpretation
Some states legislatures appear to have attempted to address
postnuptial agreements through statutes,
114
but judicial interpretation of
those statutes is necessary to truly determine whether postnuptial
agreements can be valid. These state judiciaries have interpreted
primarily two types of statutes. The first type of statute includes
language allowing a specific property right, such as a right to homestead
allowance, to be waived or altered through either a pre- or postnuptial
agreement.
115
The other type of statute allows husbands and wives to
enter into transactions with each other regarding their respective
property rights.
116
a) Ability to Alter or Waive Specific Property Rights
Statutes that provide for the alteration or waiver of specific property
rights have typically been interpreted to permit spouses to pre- or
postnuptially agree to change any of their property rights, not just the
rights stated in the statute.
117
Judicial branches that have addressed
postnuptial agreements this way have effectively extended the ability to
112. Id.
113. Cases have come before Illinois courts, however, as inquiries into whether a specific
postnuptial agreement is valid are based upon the specific factual situation. See, e.g.,
Marriage of Richardson, 606 N.E.2d 56 (Ill. App. Ct. 1992); Matter of Estate of Brosseau,
531 N.E.2d 158 (Ill. App. Ct. 1988).
114. See A
LA. CODE '' 30-4-9, 43-8-72 (West 2009); ALASKA STAT. ' 13.12.213 (West
2009); ARK. CODE ANN. '' 9-11-406, 9-11-502 (West 2009); CAL. FAM. CODE ' 1500 (West
2009); COLO. REV. STAT. ANN. ' 15-11-207 (West 2009); FLA. STAT. ANN. ' 732.702 (West
2009); KY. REV. STAT. ANN. ' 403.180(1) (West 2009); MASS. GEN. LAWS ANN. Ch. 209, ' 2
(West 2009); MICH. COMP. LAWS ANN. ' 557.23 (West 2009); MISS. CODE ANN. ' 93-3-1
(West 2009).
115. See A
LA. CODE ' 43-8-72; ALASKA STAT. ' 13.12.213; COLO. REV. STAT. ANN. ''
15-11-204, 15-11-207; FLA. STAT. ANN. ' 732.702.
116. See ALA. CODE ' 30-4-9; ARK. CODE ANN. ' 9-11-502; CAL. FAM. CODE ' 1500;
KY. REV. STAT. ANN. ' 403.180(1); MASS. GEN. LAWS ANN. Ch. 209, ' 2; MICH. COMP.
LAWS ANN. ' 557.23; MISS. CODE ANN. ' 93-3-1.
117. See Tibbs v. Anderson, 580 So.2d 1337, 1339 (Ala. 1991) (using ALA. CODE ' 43-8-
72 (West 2009) as support for the proposition that postnuptial agreements are valid under
Alabama law); In re Estate of Lewin, 595 P.2d 1055, 1057 (Colo. 1979) (relying on C
OLO.
REV. STAT. ANN. ' 15-11-204 as supporting the conclusion that spouses can enter into
postnuptial agreements).
2011] COMMENTS 797
pre- or postnuptially agree to alter or waive rights that are beyond those
specifically enumerated within the statutory language without offering
any analysis as to why these statutes support this conclusion.
For example, in Tibbs v. Anderson, the Alabama Supreme Court made
a clear and simple statement: “[W]e note that . . . postnuptial agreements
are valid in Alabama.”
118
To support this proposition, the court cited an
Alabama statute allowing spouses to postnuptially waive a specific
property right.
119
Although the Alabama Supreme Court did not provide
any reasoning why this statute supported allowing spouses to
postnuptially waive other property rights, one can speculate that the
court made the decision in light of society’s changing views of women,
specifically the acceptance of the view that women are equal with men.
Like the Alabama Supreme Court, other state judicial branches have
interpreted statutes to support the conclusion that postnuptial
agreements can be valid without providing additional support as to why
such statutes allow spouses to postnuptially modify any property right.
b) Ability of Spouses to Enter Into Contracts
The second type of statute that arguably covers postnuptial
agreements is one which allows spouses to enter into transactions with
each other regarding their respective property rights. As an example,
Oklahoma’s statute reads: “Either husband or wife may enter into any
engagement or transaction with the other, . . . respecting property . . .
.”
120
An important distinction must be noted because a simple
transaction between a husband and wife dealing with property rights
might not be the same thing as a pre- or postnuptial agreement,
depending upon the jurisdiction.
121
When spouses agree to contract with
each other regarding property rights, their respective property rights are
affected upon the signature of the property transaction. For example,
suppose Bob and Laura agree to a transaction which specifies that upon
the completion of the immediate transaction, Laura will gain sole
ownership of their home, and in exchange Bob will receive all
ownership rights in stock once jointly owned by the spouses. In this
118. Tibbs, 580 So.2d at 1339.
119. Id.
120. 43 O
KLA. STAT. ' 204 (2001). Similar statutes include ARK. CODE ANN. '' 9-11-
406, 9-11-502; KY. REV. STAT. ANN. ' 403.180(1); MASS. GEN. LAWS ANN. ch. 209, ' 2.
121. See Hendrick v. Hendrick, 1999 OK CIV APP 15, & 13, 976 P.2d 1071, 1073
(discussing that when a spouse conveys to another an interest in marital property prior to
dissolution of the marriage, such property is removed from the marital estate; thus, the
transaction affects property interests before a pre- or postnuptial agreement would).
798 OKLAHOMA LAW REVIEW [Vol. 63:779
example, the property rights of the spouses are affected upon the
completion (normally the signature) of the transaction.
By contrast, the unique feature of a pre- or postnuptial agreement is
that the parties’ property rights are not affected until dissolution of the
marriage.
122
Thus, at the time a postnuptial agreement is signed, a
spouse’s individual property rights have not been affected C only rights
of expected interests in property have been affected.
123
Use of another
example will help clarify this point. Suppose Ginny and Joe enter into a
postnuptial agreement which states that upon the dissolution of
marriage, Ginny will receive all interest in their home property, and Joe
will receive all interest in any investment real-estate property held.
Under this example, neither Joe’s rights in their home property, nor
Ginny’s rights in the investment real-estate property will be affected
until the dissolution of their marriage. Thus, Ginny and Joe have altered
their prospective property rights.
The Kentucky Supreme Court provides an example of typical judicial
analysis of these statutes.
124
The Kentucky legislature enacted a statute
allowing spouses to enter into agreements that detail how property will
be distributed upon dissolution of marriage.
125
In Edwardson v.
Edwardson, the Kentucky Supreme court relied on this statute to support
the conclusion that postnuptial agreements can be valid.
126
Unfortunately, the court offered no analysis explaining why this statute
specifically supported the conclusion that postnuptial agreements can be
valid; it almost appeared as though the court felt it was obvious due to
its lack of analysis.
127
State judiciaries that have interpreted statutes
similar to Kentucky’s statute cited above have effectively held that
spouses can not only enter into transactions that affect their property
rights upon completion of the transaction, but spouses can also enter
into transactions that affect their prospective property rights.
122. Hendrick, 1999 OK CIV APP 15, & 13, 976 P.2d 1071, 1073
123. See In re Blaydes’ Estate, 202 OK 558, 216 P.2d 277, 280 (discussing that a spouse
does not have any actual property rights C only expectation of future property rights C in the
other spouse’s property until death or divorce).
124. Edwardson v. Edwardson, 798 S.W.2d 941 (Ky. S. Ct. 1990).
125. K
Y. REV. STAT. ANN. ' 403.180(1).
126. Edwardson, 798 S.W.2d at 945-46 n.2.
127. See id.
2011] COMMENTS 799
3. Judicial Precedent Standing Alone
Several states that have addressed the validity of postnuptial
agreements have done so based solely on common law principles,
supporting such holdings on freedom of contract theories.
128
According
to these states, postnuptial agreements are simply contracts.
129
Accordingly, any contract can be valid provided that certain
requirements are met. Specifically, the contract must be fair, just and
equitable, and free from fraud, overreaching, or misrepresentation.
130
These requirements are not unique to postnuptial agreements but are
common to all traditional contracts.
131
In In Re Estate of Harber, the Arizona Supreme Court was faced with
a question of first impression: whether a postnuptial agreement can be
valid.
132
The court began its analysis by stating that although Arizona
had a statute addressing how prenuptial agreements were to be treated,
this statute was not applicable to postnuptial agreements.
133
The court
continued by discussing at great length the legal development and
treatment of women’s status by noting that through statutory and
common law recognition, a woman is an independent individual and has
all the same rights to manage her affairs that are enjoyed by men.
134
Reaching its final determination, the court stated that due to the “equal
status of women [and] men under the law,” spouses are to enjoy all
rights to contract with each other regarding property rights, both
128. Arizona, Kansas, and Maryland are states that rely solely on common-law
principles to control postnuptial validity. re Estate of Harber, 449 P.2d 7, 12 (Ariz. 1969);
Dunsworth v. Dunsworth, 81 P.2d 9, 12 (Kan. 1938); see Pearre v. Grossnickle, 114 A. 725,
728 (Md. 1921).
129. In re Estate of Harber, 449 P.2d at 12; Dunsworth, 81 P.2d at 12; see Pearre, 114
A. at 728.
130. In re Estate of Harber, 449 P.2d at 15 (holding that postnuptial agreements that
distribute property rights currently or prospectively can be valid conditioned upon meeting
special safeguards); Dunsworth, 81 P.2d at 12 (finding that a postnuptial agreement can be
valid as long as certain requirements are met); see Pearre, 114 A. at 728; see also Perkins v.
Sunset Tel. & Tel. Co, 103 P. 190, 193-94 (Cal. 1909) (holding that spouses could contract
with respect to property rights currently held or in expectancy, which was later codified in
C
AL. FAM. CODE ' 1500 (West 2009).
131. See RESTATEMENT (SECOND) OF CONTRACT ' 164 (1981) (recognizing that a
misrepresentation can make a contract voidable); RESTATEMENT (SECOND) OF CONTRACT '
177 (1981) (holding that undue influence can make a contract voidable); U.C.C. ' 2-302
(allowing courts the discretion to enforce unconscionable terms or provisions of a contract).
132. In re Estate of Harber, 449 P.2d at 14.
133. Id.; A
RIZ. REV. STAT. ANN. ' 25-201 (2009) (defining a prenuptial agreement).
134. In re Estate of Harber, 449 P.2d at 14.
800 OKLAHOMA LAW REVIEW [Vol. 63:779
presently and anticipated.
135
The court additionally supported its
determination when it noted that spouses already enjoyed the right to
convey interests in property that were otherwise considered community
property, thus taking such property outside the marital estate.
136
Thus,
two factors ultimately guided the court to conclude that postnuptial
agreements could be valid: (1) the legal development of women’s status,
and (2) the existence of other contractual rights shared between spouses
prior to this case.
The California Supreme Court also addressed the validity of
postnuptial agreements in Perkins v. Sunset Telephone & Telegraph
Company.
137
The court reached the conclusion that spouses can
determine their property rights upon dissolution of marriage through
contract, either pre- or postnuptially.
138
In reaching its determination,
the court stated: “[T]he utmost freedom of contract exists in California
between husband and wife.”
139
Thus, the court relied upon the theory of
freedom to contract as justification that spouses have the ability to enter
into postnuptial agreements under California law.
IV. Treatment of Postnuptial Agreements Under Oklahoma Law
A. Oklahoma Statutory Implications
Two different Oklahoma Courts of Civil Appeal have addressed
whether postnuptial agreements can be valid under Oklahoma law, each
providing a very different answer.
140
Both courts based their decision
principally on interpretations of two different Oklahoma statutes they
felt addressed and resolved the problem.
141
The two statutes discussed
in the appellate court opinions are title 43, sections 204 (transactions
between spouses statute) and 121 (division of property statute). In
addition to these two Oklahoma appellate court decisions, the Oklahoma
Supreme Court addressed postnuptial validity when it interpreted title
135. Id. at 15.
136. Id.
137. Perkins v. Sunset Tel. & Tel. Co, 103 P. 190, 193 (Cal. 1909).
138. Id. at 193-94.
139. Id. at 194.
140. See Hendrick v. Hendrick, 1999 OK CIV APP 15, 976 P.2d 1071; Boyer v. Boyer,
1996 OK CIV APP 94, 925 P.2d 82.
141. See Hendrick, 1999 OK CIV APP 15, 976 P.2d 1071 (Okla. Civ. App. Div. 1 1998)
(interpreting 43 O
KLA. STAT. '' 121, 204); Boyer, 1996 OK CIV APP 94, 925 P.2d 82
(interpreting 43 OKLA. STAT. ' 204).
2011] COMMENTS 801
84, section 44,
142
and when it interpreted what is now title 43, section
203.
143
The cases interpreting title 43, sections 204 and 121, and title
84, section 44 provide guidance to postnuptial validity, however, the
issue will be answered primarily based upon the language of the three
statutes.
1. Transactions Between Spouses Statute
Oklahoma’s transaction between spouses statute is of particular
importance to the validity of postnuptial agreements, and reads as
follows:
Either husband or wife may enter into any engagement or
transaction with the other, or with any other person,
respecting property, which either might, if unmarried, subject,
in transactions between themselves, to the general rules which
control the action of persons occupying confidential relations
with each other as defined by the title on trust.
144
On its face, this statute appears to give married couples the ability to
enter into transactions with each other respecting property C including
marital property.
145
This interpretation of the statute, however, is not
without dispute.
146
An alternative interpretation of this statute only
allows spouses to contract to affect presentlyBheld interests in property
and not prospective interests contingent upon death or divorce.
147
2. Division of Property Upon Divorce
Oklahoma’s division of property statute describes how marital
property will be distributed upon divorce. The language of the statute
reads as follows:
The court shall enter its decree confirming in each spouse the
property owned by him or her before marriage and the
undisposed-of property acquired after marriage by him or her
142. See Atkinson v. Barr, 1967 OK 103, 428 P.2d 316 (Okla. 1967) (interpreting 84
OKLA. STAT. ' 44).
143. See Crane v. Howard, 1951 OK 282, 243 P.2d 998 (Okla. 1951) (holding
postnuptial agreements cannot affect the forced heir statute).
144. 43 O
KLA. STAT. ' 204 (2001). It is worth noting that the statute explicitly holds that
spouses are in a confidential relationship, similar to a fiduciary relationship, when entering
contracts regarding property.
145. Id.; see Boyer, 1996 OK CIV APP 94, 925 P.2d 82.
146. See Hendrick, 1999 OK CIV APP 15, 976 P.2d 1071.
147. Id. at & 12, 976 P.2d at 1073.
802 OKLAHOMA LAW REVIEW [Vol. 63:779
in his or her own right . . . . As to such property, whether real
or personal, which has been acquired by the parties jointly
during their marriage, whether the title thereto be in either or
both of said parties, the court shall, subject to a valid
antenuptial contract in writing, make such division between
the parties as may appear just and reasonable . . . .
148
Thus, the statute grants each party to the dissolved marriage the
ability to retain property that was acquired by them before marriage, as
well as property acquired solely by them after marriage.
149
Further, the
statute authorizes courts to divide jointly-acquired property between the
parties as it deems just and reasonable.
150
The statute, however, places a
limitation on a court’s ability to divide joint property C such power is
subject to a valid prenuptial agreement.
151
In the case of divorce, a
prenuptial agreement governs the distribution of marital property.
152
3. Oklahoma Forced Heir Statute
Oklahoma’s Forced Heir Statute controls how a decedent’s property
is distributed upon his death. The statute reads:
Every estate in property may be disposed of by will; provided
however, that a will shall be subservient to any antenuptial
marriage contract in writing; but no spouse shall bequeath or
devise away from the other so much of the estate of the
testator that the other spouse would receive less in value than
would be obtained through succession by law . . . .
153
The statute allows an individual to choose to dispose of his property
through a will as opposed to intestate succession.
154
If an individual
chooses to control the distribution of his property through a will, the
statute, however, places a limitation on the individual’s ability to control
the distribution of his estate.
155
If the individual has a spouse, then he
148. 43 OKLA. STAT. ' 121 (Supp. 2007). An antenuptial agreement is the same thing as
a prenuptial agreement.
149. See id.
150. See id.
151. See id.
152. See id.
153. 84 O
KLA. STAT. ' 44 (2001).
154. See id.; 84 OKLA. STAT. ' 213 (2001) is Oklahoma’s intestate succession statute.
155. See 84 OKLA. STAT. ' 44.
2011] COMMENTS 803
cannot, by will, provide that his spouse receive less than one-half of the
value of joint-industry property.
156
The statute also requires that a prenuptial agreement control over a
valid will or distribution through intestate succession.
157
Additionally,
the limitation placed on an individual’s ability to control the distribution
of his property through a will C not being able to leave his spouse an
interest in his estate that would be less than one-half the value of joint-
industry property C is not placed on the individual when he chooses to
use a prenuptial agreement as the means to distribute his property.
158
Thus, it appears that the statute gives an individual greater rights to
control his estate if a prenuptial agreement is used.
B. Oklahoma Supreme Court Guidance
1. The Interplay Between the Oklahoma Statutes
Determining how the different statutes relate to each other is where
Oklahoma courts have been in conflict. In Hendrick v. Hendrick, an
Oklahoma Court of Civil Appeals held that Oklahoma’s division of
property statute controls when determining whether a postnuptial
agreement can be valid, and such statute mandates that a court determine
the division of property upon dissolution of a marriage, subject only to a
prenuptial agreement.
159
Hendrick also held that title 43, section 204,
governing transactions between spouses, is not relevant to the analysis
when determining whether a postnuptial agreement can be valid.
160
In
Boyer v. Boyer, a decision by a different Oklahoma Court of Civil
Appeals, the court held that title 43, section 204 was relevant to
postnuptial validity and allowed spouses to affect their property rights
through a postnuptial agreement.
161
Along with the two Oklahoma Court of Civil Appeals cases, there are
some Oklahoma Supreme Court cases that addressed the validity of
postnuptial agreements in the very limited context of the forced heir
statute.
162
This section will begin with a discussion of the Oklahoma
156. See id.
157. See 84 O
KLA. STAT. ' 44.
158. See id.; BLACK'S LAW DICTIONARY, supra note 4, at 176, 517 (9th ed. 2009); Talley
v. Harris, 1947 OK 218, &9, 182 P.2d 765, 768 (Okla. 1947) (holding the limitation clause
of title 84, section 213 applies only to the “every estate in property to be disposed of by will”
clause and not the prenuptial clause).
159. See Hendrick v. Hendrick, 1999 OK CIV APP 15, 976 P.2d 1071.
160. See id.
161. See Boyer v. Boyer, 1996 OK CIV APP 94, 925 P.2d 82.
162. See Atkinson v. Barr, 1967 OK 103, 428 P.2d 316 (Okla. 1967); Crane v. Howard,
804 OKLAHOMA LAW REVIEW [Vol. 63:779
Supreme Court’s decision in Atkinson v. Barr, as it is the most recent
representative case, and will then address the two appellate court
decisions in chronological order.
2. The Decision of Atkinson v. Barr
The Oklahoma Supreme Court addressed the validity of postnuptial
agreements in a limited context approximately thirty years prior to
Boyer and Hendrick. In Atkinson, the Oklahoma Supreme Court
addressed whether spouses could postnuptially waive their rights under
Oklahoma’s forced heir statute.
163
This case involved a deed between a
husband and wife relating to homestead property.
164
A few years after
marriage, the husband and wife separated for a short period, and during
this separation period the husband purported to convey his interest in the
couple’s homestead property to his wife by quit-claim deed.
165
The
court determined that through the quit-claim deed, the husband had
conveyed any and all rights he had in the homestead property to his
wife.
166
Ultimately, the separation period lasted only six weeks, and the
couple resumed living together in their homestead property for
approximately another year and a half before the wife died.
167
After the
wife died intestate, the husband continued to live in the property until
his death.
168
The quit-claim deed executed by the husband, during the
separation period, came into question after he died and his executor
began to probate his will.
169
The wife’s statutory heirs claimed that
when the husband executed the quit-claim deed he not only gave up his
current interest in the homestead property but also his right to a share of
1951 OK 282, 243 P.2d 998 (Okla. 1951); In re Blayde’s Estate, 1950 OK 73, 216 P.2d 277
(Okla. 1950).
163. Id. 84 O
KLA. STAT. ' 44 (2001) is also known as “forced heir statute.” The forced
heir statute basically holds that a spouse cannot by will or prenuptial agreement leave their
spouse an amount of their estate that would be less than one-half of the value of property
obtained through joint industry.
164. Atkinson, & 6, 428 P.2d at 318.
165. Id. A quit-claim deed purports to convey any and all interest that one individual
currently holds in property to the recipient of the quit-claim deed, without warranty title.
166. Id. & 23, 428 P.2d at 320
167. See id. & 6, 428 P.2d at 318. The six-week separation period began in August of
1949 and the wife died in April of 1951. Thus, the couple lived in the homestead property
post-separation for approximately a year and a half.
168. Id. && 6-8, 428 P.2d at 318.
169. Id. && 8-9, 428 P.2d at 318.
2011] COMMENTS 805
the property through intestate succession.
170
The executor of the
husband’s estate claimed the quit-claim deed could not deprive the
husband of his statutory right of inheritance from his wife through the
forced heir statute.
171
The Oklahoma Supreme Court was forced to determine whether the
husband had conveyed away his statutory right of inheritance in the
couple’s homestead property by the quit-claim deed.
172
In this situation,
the wife’s heirs claimed the quit-claim deed essentially functioned as a
postnuptial agreement attempting to waive the husband’s inheritance
rights, through the forced heir statute, in the homestead property.
173
The
Oklahoma Supreme Court ultimately concluded that despite the quit-
claim deed, the husband could not waive his statutory right to an interest
in his homestead property through a postnuptial agreement.
174
According to Oklahoma’s statute of descent and distribution
applicable at the time, a spouse was entitled to a one-third interest in
homestead property if the decedent left more than one child or heir.
175
In this case, the Oklahoma Supreme Court concluded that when the wife
died intestate leaving two children, her husband was entitled to a one-
third interest in their homestead property, and the husband could not
postnuptially agree to waive this interest in the property.
176
The court
held that Oklahoma’s forced heir statute forbid the husband from
waiving his statutory interest in the homestead property through a
postnuptial agreement.
177
At the time, this statute read:
Every estate in property may be disposed of by will; provided
however, that a will shall be subservient to any [prenuptial]
marriage contract in writing; but no spouse shall bequeath or
devise away from the other so much of the estate of the
testator that the other spouse would receive less in value than
would be obtained through succession by law. . . .
178
In conclusion, the Oklahoma Supreme Court held title 84, section 44
prohibited a spouse from waiving his statutory right of inheritance
170. Id. && 6-9, 428 P.2d at 318.
171. Id. & 11, 428 P.2d at 319.
172. See Atkinson, 1967 OK 103, 428 P.2d 316.
173. Id. & 23, 428 P.2d at 320.
174. Id. & 29, 428 P.2d at 320-21.
175. 84 O
KLA. STAT. ' 213 (2001).
176. Atkinson, & 29, 428 P.2d at 320-21.
177. Id. (interpreting 84 OKLA. STAT. ' 44).
178. 84 OKLA. STAT. ' 44.
806 OKLAHOMA LAW REVIEW [Vol. 63:779
through a postnuptial agreement;
179
however, the Oklahoma Supreme
Court did not go so far as to say that all postnuptial agreements are per
se invalid. From the facts of Atkinson, the court’s decision appears
controlling in situations where spouses try to use a postnuptial
agreement to create a marital agreement independent of a prenuptial
agreement. It is uncertain, however, if this case is controlling in
situations where spouses try to use a postnuptial agreement to simply
modify an existent prenuptial agreement.
C. The Boyer v. Boyer Analysis
In Boyer v. Boyer, the Oklahoma Court of Civil Appeals was faced
with the issue of whether a valid prenuptial agreement could be
modified during marriage by use of a postnuptial agreement.
180
In
September 1989, Glenn and Judy Boyer were married.
181
Before their
marriage, the couple entered into a valid prenuptial agreement which
stated that each party would retain sole possession of property owned
prior to marriage and “any increase in value of the separate property
would remain separate.”
182
In 1991, the couple wanted to make
improvements to one of the wife’s separate pieces of real-estate using
the husband’s funds.
183
The couple attempted to modify their prenuptial
agreement to reflect the husband’s investment in the wife’s property,
which would give the husband a proportionate interest in the property
that reflected his investment.
184
Eventually the coupled filed for divorce
in December 1994, and the wife challenged the validity of the
postnuptial modification to the prenuptial agreement.
185
The Boyer court began its analysis of the validity of postnuptial
agreements by discussing title 43, section 204, governing transactions
between spouses.
186
In discussing the statute, the Boyer court called
upon an Oklahoma Supreme Court case, Manhart v. Manhart, that
analyzed the same statute.
187
The Boyer court noted the Oklahoma
179. Atkinson, & 29, 428 P.2d at 320-21 (citing Crane v. Howard, 1951 OK 282, 243
P.2d 998).
180. Boyer v. Boyer, 1996 OK CIV APP 94, & 9, 925 P.2d 82, 84.
181. Id. & 2, 925 P.2d at 83.
182. Id.
183. Id. & 3, 925 P.2d at 83.
184. Id.
185. Id. && 4-6, 925 P.2d at 83.
186. Id. & 10, 925 P.2d at 84.
187. Id. & 11, 925 P.2d at 84 (citing Manhart v. Manhart, 1986 OK 12, 725 P.2d 1234
(Okla. 1986)).
2011] COMMENTS 807
Supreme Court stated “that spouses may contract with each other and
alter their legal relations as to property” and that spouses may alter their
marital relations regarding property by either conveying a property
interest to the other or by taking joint property out of the marital estate
that would otherwise be subject to equitable division.
188
The Boyer
court further clarified that the ability of spouses to contract with each
other was limited by statute to contracts affecting property rights
only.
189
To support its position that postnuptial agreements are valid under
Oklahoma law, the Boyer court provided an additional theory based on
contract principles.
190
The court stated that Oklahoma clearly
recognized that a contract may be modified by mutual consent and
consideration; thus, basic contract law permitted a prenuptial agreement
C a form of a contract C to be modified through a postnuptial
agreement.
191
Additionally, the court supported the contract theory by
stating that because a prenuptial agreement can be rescinded or revoked,
it followed that a prenuptial agreement could also be modified
postnuptially.
192
The contract theory based analysis, however, appeared
to be limited to specific factual situations. It seemed as if the analysis
pertained to factual situations where spouses wanted to modify an
existing prenuptial agreement through a postnuptial agreement, as
opposed to situations where a postnuptial agreement is the first marital
agreement between a couple.
The court ultimately concluded its analysis by holding that
postnuptial agreements can be valid and then imposed certain
requirements in order for a postnuptial agreement to be valid: (1) the
agreement is fairly entered into, (2) the intentions of the parties are
clear, (3) the agreement is substantively fair, and (4) the agreement
“does not contravene public policy.”
193
D. Postnuptial Treatment Under Hendrick v. Hendrick
Two years later, in Hendrick, a different Oklahoma Court of Civil
Appeals considered the validity of postnuptial agreements.
194
The
188. Id. & 11, 925 P.2d at 84 (citing Manhart v. Manhart, 1986 OK 12, 725 P.2d 1234
(Okla. 1986)).
189. Id. & 11 n.3, 925 P.2d at 84 n.3; see 43 OKLA. STAT. ' 205 (2001)).
190. Id. & 14, 925 P.2d at 85.
191. Id.
192. Id. & 15, 925 P.2d at 85.
193. Id.
194. Hendrick v. Hendrick, 1999 OK CIV APP 15, & 2, 976 P.2d 1071.
808 OKLAHOMA LAW REVIEW [Vol. 63:779
parties in this case were married in 1985 and entered into a prenuptial
agreement before marriage.
195
Under the prenuptial agreement, the wife
waived any and all rights to the real and personal property of the
husband to which she might otherwise be entitled.
196
The prenuptial
agreement provided that after five years of marriage, the wife would be
entitled to receive property worth $1,000,000 from the husband in the
event of divorce.
197
In 1989, the husband made gifts to his wife with a
value of approximately $5,000,000.
198
The couple then entered into two
different postnuptial agreements modifying the prenuptial agreement:
the first postnuptial agreement stated that the gifts alleviated any
liability the husband might have in the case of divorce under the original
prenuptial agreement, and the second postnuptial agreement stated that
the wife would have to give back any of the gifts that exceeded
$1,000,000 in value in the event of divorce.
199
In 1995, the wife filed
for divorce and challenged the validity of the postnuptial agreements.
200
The court started its analysis of postnuptial agreements by stating that
marriage is a statutory creature and “each spouse has a statutory share in
the marital estate in the event of divorce.”
201
Thus, the only way to
affect these rights is through a statute.
202
The court then reiterated that
the language of Oklahoma’s division of property statute states that an
equitable division of marital property is subject to only one thing C a
valid prenuptial agreement,
203
and stated that by its very nature a
prenuptial agreement is one entered into before marriage.
204
Thus, a
modification of a prenuptial agreement changes the very nature of the
agreement, and it is no longer a prenuptial agreement, but a postnuptial
agreement.
205
The court then addressed whether title 43, section 204 supported
postnuptial agreement validity.
206
The court held that the language of
the statue allowed one spouse to gift or convey to the other spouse his
195. Id. at 1071.
196. Id.
197. Id. & 2, 976 P.2d at 1071-72.
198. Id. & 3, 976 P.2d at 1072.
199. Id. && 4-5, 976 P.2d at 1072.
200. Id. & 6, 976 P.2d at 1072.
201. Id. & 9, 976 P.2d at 1072.
202. Id.
203. Id. & 12, 976 P.2d at 1073.
204. Id. & 11, 976 P.2d at 1072-73.
205. Id.
206. Id. & 12, 976 P.2d at 1073.
2011] COMMENTS 809
interest in marital property, which would have the effect of taking the
property out of the marital estate.
207
The effects of a section 204
conveyance are distinguishable from the effects of a postnuptial
agreement because a postnuptial agreement “is only effective upon the
contingency of divorce and/or death,” whereas a section 204 conveyance
is effective immediately.
208
Therefore, a postnuptial agreement affects
the marital estate only upon the contingency of one of those events, and
section 204 does not support this kind of alteration to spousal property
rights.
209
The court continued its discussion of Boyer and provided further
analysis of why the Boyer court erroneously found postnuptial
agreements valid.
210
In addition to the section 204 discussion, the
Hendrick court stated that Boyer interpreted the Oklahoma Supreme
Court’s decision in Manhart incorrectly.
211
The Manhart case did not
deal with a prenuptial or postnuptial agreement, but instead dealt with a
section 204 transaction of property between spouses, which took the
property out of the marital estate.
212
The Hendrick analysis of the
difference in a postnuptial agreement and a section 204 transaction
explains why the Hendrick court held Manhart did not support the
validity of postnuptial agreements, as Boyer held it did.
The court also addressed Boyer’s proposition that contract law allows
prenuptial agreements to be modified through a postnuptial agreement.
The Hendrick court stated that the proposition that a prenuptial
agreement could be postnuptially modified simply because a prenuptial
agreement could be rescinded “is [simply] a legal non sequitur.”
213
But
the court did not provide any further analysis to support that contract
law was not applicable to the situation.
214
Thus, all of the above
reasons led the Hendrick court to hold that postnuptial agreements
(either through modifying an earlier marital agreement or starting new)
are not valid.
215
207. Id.
208. Id.
209. Id.
210. Id. & 13, 976 P.2d at 1073.
211. Id.
212. Id.
213. Id. & 14, 976 P.2d at 1073. A legal non sequitur means an inference or conclusion
that does not logically follow from the premise. B
LACK'S LAW DICTIONARY, supra note 4, at
1157 (9th ed. 2009).
214. Hendrick, & 14, 976 P.2d at 1073.
215. Id. & 17, 976 P.2d at 1074.
810 OKLAHOMA LAW REVIEW [Vol. 63:779
V. The Applicability of Oklahoma Statutes to Postnuptial Agreement
Validity
Essential to addressing postnuptial agreement validity in Oklahoma is
determining which Oklahoma statutes are relevant to the issue and in
what situations. All three statutes, title 43, sections 121 and 204 and
title 84, section 44, seem to play a role in determining postnuptial
agreement validity. This section will begin by addressing the
relationship of the three Oklahoma statutes. Next, in addition to
addressing to what extent each respective Oklahoma statute pertains to
the issue, this section will suggest that the effects of the Oklahoma
Supreme Court’s decision in Atkinson will guide the determination of
whether postnuptial agreements are valid. This section concludes with a
suggested change to Oklahoma’s statutory scheme in order to allow
postnuptial agreements to be valid in all situations, which is in line with
Oklahoma’s policy of favoring marital agreements in general.
A. Postnuptial Agreement Validity Under Oklahoma’s Current Statutory
Scheme
1. Relationship of Oklahoma’s Three Postnuptial Agreement Statutes
Title 43, section 204, Oklahoma’s spousal statute, contains the
broadest language of the three Oklahoma statutes relevant to postnuptial
validity;
216
thus, this is the best statute to begin the discussion of the
relationship of the three. This statute gives spouses the general ability
to enter into transactions with each other in whatever forms those
transactions may take.
217
Section 204 also gives spouses the ability to
enter into marital contracts respecting property generally.
218
Whether
the agreement is prenuptial in nature, or an agreement to convey
interests in marital property, section 204 is what allows this type of
transaction.
219
Unlike the Boyer court holding, section 204 should not guide a
court’s determination when addressing postnuptial agreement validity.
Boyer incorrectly relied on section 204 to support its holding that a
prenuptial agreement could be modified through a postnuptial
agreement.
220
Although some states have relied on statutes with
216. See 43 OKLA. STAT. ' 204 (2001).
217. See id.
218. See id.
219. See id.
220. Boyer v. Boyer, 1996 OK CIV APP 94, 925 P.2d 82.
2011] COMMENTS 811
language similar to section 204, those states do not have any other
statutes that are more pertinent to postnuptial validity.
221
While it may
be appropriate to use section 204 as a starting point when discussing
postnuptial agreement validity, exclusive reliance on this statute is
improper because Oklahoma maintains statutes that are more germane to
postnuptial validity.
222
Thus, these other statutes should govern a
court’s analysis of postnuptial validity.
Title 43, section 121 instructs Oklahoma courts of the proper
procedures to use when distributing property upon a divorce.
223
Title
84, section 44 serves the same function for Oklahoma courts except that
it guides how to dispose of property upon the death of spouses.
224
Since
attempting to define property rights is the most common situation in
which a postnuptial agreement is used, title 43, section 121 and title 84,
section 44 are the two statutes that courts should look to when
determining whether a postnuptial agreement can detail how property is
supposed to be distributed. Because these two statutes differ in
language, it is important to look at the effects of each separately.
Title 84, section 44 is found in the Wills and Succession section of
Oklahoma’s statute scheme.
225
The majority of this statute deals more
with wills than it does with marital agreements, as it states that an
individual can create a will to bypass Oklahoma’s intestate statute.
226
Further, the statute places restrictions on wills as discussed in Part
IV.A.3 of this comment. The second clause of subpart A of this statute,
however, contains language that relates this statute to marital contracts,
as it states that wills will be subject to a prenuptial agreement.
227
Thus,
when a court probates a decedent’s estate and the decedent had a
prenuptial agreement with his spouse, the court looks to a prenuptial
agreement to determine how the decedent’s estate is to be distributed.
228
In the event that no prenuptial agreement exists, the court then looks to
see if the decedent had a will to guide in the distribution of his estate,
and turns finally to Oklahoma’s intestate succession if the decedent did
221. See ARK. CODE ANN. '' 9-11-406, 9-11-502 (West 2009); MASS. GEN. LAWS ANN.
ch. 209, ' 2 (West 2009). Reference Part III.B.2.b. for discussion of statutes with this type
of general language.
222. See 43 O
KLA. STAT. ' 121 (Supp. 2007); 84 OKLA. STAT. ' 44 (2001).
223. 43 OKLA. STAT. ' 121.
224. See 84 OKLA. STAT. ' 44.
225. See id.
226. See id.
227. See id.
228. See id.
812 OKLAHOMA LAW REVIEW [Vol. 63:779
not provide a prenuptial agreement or will.
229
It is also important to note
that the statute states a will is subject to a prenuptial agreement, and
gives no other legal device this authority.
230
Title 43, section 121 specifically addresses how property is to be
distributed upon divorce.
231
Section 121 gives the court the authority to
make an equitable distribution of property acquired jointly during
marriage, whether the title of the property is “in either or both of the
said parties,” as the court sees fit.
232
The statute, however, places a
limitation on this power of the court; the court must give effect to a
valid prenuptial agreement.
233
As in title 84, section 44, the court’s
equitable division authority is subject to a prenuptial agreement, and no
other devices are similarly listed.
234
Both title 84, section 44 and title 43, section 121 explicitly address
only prenuptial agreements and not postnuptial agreements.
235
When
considering basic principles of statutory construction, it is important that
the only listed exception to both statutes is the existence of a prenuptial
agreement. “The primary goal of statutory construction is to determine
legislative intent,”
236
and the legal maxim “expressio unius est exclusio
alterius” is used to determine legislative intent.
237
This maxim stands
for the proposition that “the mention of one thing in a statute impliedly
excludes another thing.”
238
Since Oklahoma does not publish legislative
history, application of this legal maxim is particularly appropriate in
determining the legislature’s intentions through both title 84, section 44
and title 43, section 121. Since the two statutes call specifically for
229. See id.
230. See id.
231. 43 O
KLA. STAT. ' 121 (Supp. 2007).
232. Id.
233. See id.
234. See id.
235. See 84 O
KLA. STAT. ' 44 (2001); 43 OKLA. STAT. ' 121; Atkinson v. Barr, 1967 OK
103, 428 P.2d 316 (Okla. 1967).
236. TXO Production Corp. v. Oklahoma Corp. Comm’n, 1992 OK 39, &7, 829 P.2d
964, 968-69 (Okla. 1992).
237. R.R. Tway, Inc. v. Okla. Tax Comm'n, 1995 OK 129, & 17, 910 P.2d 972, 977
(Okla. 1995).
238. Pub. Serv. Co. of Okla. v. State ex rel. Corp. Comm’n, 1992 OK 153, & 16, 842
P.2d 750, 753. The Oklahoma Supreme Court continued describing this legal maxim by
stating: “The maxim is to be applied only as an aid in arriving at intention and should never
be followed to the extent of overriding a different legislative intent.” Id. Since Oklahoma
does not provide legislative history, it seems the only way application of the maxim could be
found to override legislative intent would be if language as explicit as that empowering
prenuptial agreements existed elsewhere in the statutes.
2011] COMMENTS 813
prenuptial agreements as a limitation to either a will or the court’s
equitable division power, the statutes impliedly exclude postnuptial
agreements as another limitation. Postnuptial agreements are not
explicitly mentioned anywhere else in the Oklahoma statutes. Thus, a
postnuptial agreement that is used to create a new marital contract
appears to violate both title 84, section 44 and title 43, section 121, and
is therefore unenforceable.
2. The Proper Application of Oklahoma’s Statutes With Regard to
Postnuptial Validity
Revisiting the Oklahoma Supreme Court’s decision and analysis in
Atkinson serves as a guide in ascertaining how postnuptial agreements
should be treated under Oklahoma’s current law. In addition to
Atkinson, Oklahoma’s policy of favoring marital agreements will help
determine how postnuptial agreements should be treated in Oklahoma.
After considering the language of title 84, section 44 and title 43,
section 121, Atkinson’s analysis, and Oklahoma’s favorable treatment of
marital agreements, determining postnuptial validity will ultimately
hinge on the use of the postnuptial agreement: either as a modification
to a prenuptial agreement or as a means to create a new marital
agreement between spouses.
In Atkinson, the court held the wife’s heirs were arguing the quit-
claim deed served as postnuptial agreement to waive the husband’s
statutory rights of inheritance.
239
Thus, the postnuptial agreement would
have served to create an entirely new marital agreement.
240
The
Atkinson court relied on title 84, section 44 for guidance in addressing
postnuptial validity and did not discuss whether a postnuptial agreement
could be used to modify a prenuptial agreement.
241
The court simply
stated, “[a] postnuptial agreement of a husband and wife not to dissent
from the will of the other, and waiving the right of the husband or wife
to take the other’s estate under the law of intestate succession, is not
authorized by statute and is invalid and unenforceable.”
242
Thus, the
Oklahoma Supreme Court made clear that title 84, section 44 makes a
will subservient to a prenuptial agreement only, and not to postnuptial
agreements, as well.
243
Because Atkinson dealt with a situation where a
239. Atkinson v. Barr, 1967 OK 103, & 23, 428 P.2d 316, 320 (Okla. 1967).
240. Id.
241. See id. & 29, 428 P.2d at 320-21.
242. Id. (quoting Crane v. Howard, 1951 OK 282, & 0, 243 P.2d 998, 999).
243. See Id.
814 OKLAHOMA LAW REVIEW [Vol. 63:779
postnuptial agreement was used to create an entirely new marital
agreement, it is unclear whether the holding and analysis of Atkinson
controls in situations where a postnuptial agreement is used to modify
an existing prenuptial agreement.
Considering the uncertainty of Atkinson’s applicability to situations
where the use of a postnuptial agreement is to simply modify a
prenuptial agreement, and that the language of both title 84, section 44
and title 43, section 121 fails to provide an explicit answer for this
situation, a gap exists for the Oklahoma courts to fill with common law
principles. An understanding of Oklahoma’s position of favoring
marital agreements helps to provide guidance on how courts should fill
this gap left by the legislature.
As a whole, the state of Oklahoma, through both its judicial and
legislative branches, favors the use of marital contracts between
spouses.
244
Historically, however, this was not the case; women were
viewed with an attitude of paternalism.
245
Thus, courts were very
skeptical of any form of marital agreement. Specifically, prenuptial
agreements were once viewed as “a wicked device to evade the laws
applicable to marriage relations, property rights, and divorces. . . .”
246
This view of marital contracts, however, began to change. Women were
no longer seen as insensible or especially vulnerable “to overreaching by
their fiancés and in need of special judicial protection.”
247
The
Oklahoma Supreme Court recognized this change in attitude in 1935
when it stated that prenuptial agreements were favored by law.
248
In
addition to being favored by law, the areas a prenuptial agreement can
cover have expanded since their development in the twentieth century.
249
Although a prenuptial agreements that was made in contemplation of
divorce was not per se unenforceable, in 1977 the Oklahoma Supreme
Court made clear that prenuptial agreements were not unenforceable
simply because they contemplated such divorce.
250
The Oklahoma Legislature also continued to expand spouses’ ability
to contract with one another when it enacted title 43, section 204,
244. See 43 OKLA. STAT. ' 121 (Supp. 2007); 43 OKLA. STAT. ' 204 (2001); Manhart v.
Manhart, 1986 Ok 12, & 29, 725 P.2d 1234, 1238 (Okla. 1986); Estate of Burgess, 1982 OK
CIV APP 22, & 12, 646 P.2d 623, 625 (Okla. Civ. App. Div. 1 1982).
245. Estate of Burgess, & 10, 646 P.2d at 625.
246. Id.
247. Id. & 12, 646 P.2d at 625.
248. Leonard v. Prentice, 1935 OK 427, & 17, 43 P.2d 776, 780 (Okla. 1935).
249. See discussion supra Part II.A.
250. Freeman v. Freeman, 1977 OK 110, & 2, 565 P.2d 365, 367 (Okla. 1977).
2011] COMMENTS 815
regarding transactions between spouses.
251
“At common-law, Husband
and Wife could not have contracted to convey Wife's [property]
interest;” however, title 43, section 204 modified this common law
rule.
252
The Oklahoma Legislature further expanded the power of
marital agreements when it amended title 43, section 121.
253
Oklahoma
courts had once held that a prenuptial agreement could not prohibit a
court’s equitable division powers in divorce cases.
254
In 1992, the
Oklahoma Legislature amended title 43, section 121 by inserting
“subject to a valid [prenuptial] contract in writing,” thus, making the
court’s equitable division powers subject to a valid prenuptial
agreement.
255
In addition to the judicial and legislative shifts toward favoring
marital contracts, there are also many policy justifications that support
the use of marital contracts. For example, postnuptial agreements might
actually foster the institution of marriage because without one, some
couples might not be willing to marry since they would not be able to
order their affairs as they see fit.
256
Additionally, postnuptial
agreements can help prevent future dispute among prospective spouses
because they will know how each other’s property will be disposed of in
the future.
257
Similarly, use of postnuptial agreements help promote
domestic happiness by allowing couples to privately resolve any
potential conflict associated with distribution of property.
258
Over time, Oklahoma courts appear to almost advocate the use of
marital contracts when the situation calls for one, showing great
preference for their use. Considering this attitude toward marital
agreements in general, it seems that the use of a postnuptial agreement
as a means to modify a prenuptial agreement is in line with Oklahoma’s
policy of favoring these types of agreements and providing spouses the
ability to control their own affairs. Additionally, the two statutes
relevant to distribution of property C title 84, section 44 and title 43,
section 121 C require only that a valid prenuptial agreement be in
251. See 43 OKLA. STAT. ' 204 (2001).
252. Manhart v. Manhart, 1986 Ok 12, & 29, 725 P.2d 1234, 1238 (Okla. 1986).
253. See 43 OKLA. STAT. ' 121 (Supp. 2007).
254. See Taylor v. Taylor, 1991 OK CIV APP 126, & 10-11, 832 P.2d 429, 431-32
(Okla. Civ. App. Div. 1 1991).
255. See 43 OKLA. STAT. ' 121.
256. Estate of Burgess, 1982 OK CIV APP 22, & 13, 646 P.2d 623, 625-26 (Okla. Civ.
App. Div. 1 1982).
257. Id. & 14, 646 P.2d at 626.
258. See Leonard v. Prentice, 1935 OK 427, 43 P.2d 776 (Okla. 1935).
816 OKLAHOMA LAW REVIEW [Vol. 63:779
existence for a court to consider the marital contract when distributing
property.
259
Thus, in the situation where a marriage dissolves from
death or divorce, and a couple has made a modification to a valid
prenuptial agreement postnuptially, that prenuptial agreement was in
existence when the couple was married. Simply modifying the
prenuptial agreement postnuptially need not change the fact that the
prenuptial agreement was in existence before marriage, thus satisfying
title 84, section 44 and title 43, section 121. Further, it seems in line
with Oklahoma’s policy towards favoring prenuptial agreements to
consider a modification to a prenuptial agreement as nothing more than
a reflection of the parties’ intention to continue to align their affairs as
they see fit. Additionally, the ability to modify the prenuptial agreement
postnuptially serves Oklahoma’s desire for spouses to resolve private
disputes privately.
The court in Boyer was misguided in using title 43, section 204 to
justify that a postnuptial agreement can modify a prenuptial agreement,
while the Hendrick court relied on the proper statute C title 43, section
121 C but came to the wrong conclusion, that prenuptial agreements
could not be amended through postnuptial agreements.
260
The court in
Hendrick analogized that case with the Oklahoma Supreme Court’s
decision in Atkinson.
261
As addressed above, the law under Oklahoma
should treat the use of postnuptial agreements differently depending on
their use: either as a modification tool or a means to create an entirely
new marital contract.
The Hendrick court overlooked this distinction and chose to apply
Atkinson, a case dealing with a postnuptial agreement attempting to
create a new marital contract, to the distinguishable facts before it,
which dealt with using a postnuptial agreement as a way to modify a
prenuptial agreement.
262
In addition to the incorrect use of Atkinson, the
Hendrick court overlooked the policy of both Oklahoma’s legislature
and judiciary of favoring marital contracts and disregarded the
proposition that allowing modification of prenuptial agreements
postnuptially serves to further the same policies that favor the use of
marital contracts generally.
259. See 43 OKLA. STAT. ' 121; 84 OKLA. STAT. ' 44 (2001).
260. Hendrick v. Hendrick, 1999 OK CIV APP 15, 976 P.2d 1071.
261. Id. & 16, 976 P.2d at 1073-74.
262. See Atkinson v. Barr, 1967 OK 103, & 23, 428 P.2d 316, 320 (Okla. 1967);
Hendrick, 1999 OK CIV APP 15, 976 P.2d 1071.
2011] COMMENTS 817
B. Proposed Changes to Oklahoma’s Statutes to Enhance Postnuptial
Agreement Treatment
The Oklahoma Legislature should consider amending title 84, section
44 and title 43, section 121 to allow spouses to enter into entirely new
marital contracts postnuptially. Such an amendment would coincide
with Oklahoma’s policy goals of giving married couples the ability to
control their property, which is the same goal that is currently served by
prenuptial agreements. Prenuptial agreements receive favorable
treatment in part because they help foster marriage;
263
in certain
situations postnuptial agreements can also help foster a couple’s
decision to remain married. Just as a prenuptial agreement helps foster
marriage by providing couples that would not marry unless they could
manage their affairs a means to accomplish their desired control, a
postnuptial agreement can provide married couples a way to resolve
disputes, which might end in divorce unless a resolution is found by
allowing them the ability to control their property after marriage.
In addition to promoting and sustaining marriage, postnuptial
agreements that create new marital contracts can help not only sustain a
marriage but can also create more amicable and loving marriages. As
noted earlier, spouses often want to use a postnuptial agreement,
whether by amending a prenuptial agreement or creating a new marital
agreement, to resolve problems that could not have been foreseen before
marriage. Allowing couples to create new marital contracts through a
postnuptial agreement is simply a recognition of the reality that many
couples do not know what their marriage will look like and what
difficulties might arise. Although many couples might not end their
marriage over these unforeseen challenges, affording couples the ability
to control their marriages would create a better living environment for
them and other family member living in the same home C such as
children.
Amending title 84, section 44 and title 43, section 121 would not
require a total statutory overhaul, but simply an insertion into the
already existing statutory language. Oklahoma could use Alabama’s
statute relevant to postnuptial agreement validity as a model for the
amendments necessary to title 84, section 44 and title 43, section 121.
The Alabama statute reads: “The right of election of a surviving spouse
and the rights of the surviving spouse to homestead allowance, exempt
263. Griffin v. Griffin, 2004 OK CIV APP 58, & 17, 94 P.3d 96, 100 (Okla. Civ. App.
Div. 3 2004).
818 OKLAHOMA LAW REVIEW [Vol. 63:779
property and family allowance, or any of them, may be waived, wholly
or partially, before or after marriage . . . .”
264
For title 84, section 44 and title 43, section 121 only the words “or
postnuptial” would need to be inserted into the respective statutes.
Thus, title 84, section 44(b)(1) would read: “Every estate in property
may be disposed of by will except that a will shall be subservient to any
antenuptial or postnuptial marriage contract in writing.” Title 43,
section 121 would read: “As to such property, whether real or personal,
which has been acquired by the parties jointly during their marriage,
whether the title thereto be in either or both of said parties, the court
shall, subject to a valid [antenuptial] or postnuptial contract in
writing . . . .”
If Oklahoma makes amendments to title 84, section 44 and title 43,
section 121, courts should impose similar requirements to those it
imposes on prenuptial agreements to determine on a case-by-case basis
if a specific postnuptial agreement is valid. The requirements that make
a prenuptial agreement valid can be employed on postnuptial agreements
that create new marital contracts to ensure one party is not being unduly
taken advantage of. Because courts already consider spouses to be in a
confidential relationship and the status of a confidential relationship
requires spouses to act as fiduciaries, spouses creating a new marital
contract through a postnuptial agreement would already be under a duty
to act as fiduciaries. Just as courts require that prenuptial agreements be
entered into voluntarily to satisfy the duty of spouses to act as
fiduciaries, so should a court require that spouses enter into a
postnuptial agreement voluntarily.
The requirement of voluntariness would help address the concern that
one spouse was exercising undue influence over the other when creating
a new marital agreement through a postnuptial agreement. When a court
considers the elements of voluntariness C (1) time given to sign the
agreement; (2) ability to consult independent counsel; and (3) presence
of fraud, misrepresentation, and duress
265
C it is effectively protecting
the interests of either spouse and ensuring the postnuptial agreement was
entered into validly. The other requirements of prenuptial agreements,
(1) the agreement is not against public policy, (2) there is a full and fair
disclosure of assets, and (3) the agreement is substantively fair and
264. ALA. CODE ' 43-8-72 (West 2009).
265. See part II.B.2 for further discussion of each individual element of voluntariness.
2011] COMMENTS 819
conscionable, can all be equally applied to a postnuptial agreement
creating a new marital agreement.
VI. Conclusion
Given the uncertainty of treatment of postnuptial agreements under
both Oklahoma’s statutory and common law, it is important to
understand what Oklahoma’s statutory law covers, Oklahoma’s attitude
toward marital agreements, and justifications for postnuptial
agreements. Spouses increasingly attempt to control their property
rights within a marriage, through both pre- and postnuptial
agreements.
266
Because of this increase in both forms of marital
contracts it is important to understand how Oklahoma law treats both
agreements. Although prenuptial agreements are clearly favored under
Oklahoma law, the treatment of postnuptial agreements is unclear.
Whether postnuptial agreements are valid under Oklahoma law hinges
on the use of the postnuptial agreement: either as a way to modify a
prenuptial agreement or as a way to create an entirely new marital
contract. Based on Oklahoma’s statutes relevant to postnuptial
agreement validity, title 84, section 44 and title 43, section 121, both
statutes seem to create a gap in legislative intent when a postnuptial
agreement is employed as a way to modify a prenuptial agreement C a
gap that must be filled by common law principles.
267
Considering
Oklahoma’s policy of favoring marital agreements because these
agreements allow parties to align their affairs as they please, and help
foster marriage and resolve marital disputes privately, it is likely that
Oklahoma courts will fill this gap in Oklahoma’s postnuptial statutes by
holding that a prenuptial agreement can be modified through use of a
postnuptial agreement.
268
Additionally, allowing postnuptial agreements
to be used in such a way serves the same goals that justify the initial use
of prenuptial agreements.
Although postnuptial agreements modifying prenuptial agreements
are likely to be valid under Oklahoma law, postnuptial agreements that
create entirely new marital agreements are likely prohibited under
266. See Jean Chatzky, For Richer or Poorer, Unless We Get Divorced 1 (2006),
http://money.cnn.com/magazines/moneymag/moneymag_archive/2006/04/01/8373333/index
.htm; Robert DiGiacomo, Quit Fighting
B
Get a Postnuptial Agreement 1 (2008), http://
www.cnn.com/2008/LIVING/personal/04/02/postnuptial.agreement/index.html.
267. See 43 O
KLA. STAT. ' 121 (Supp. 2007); 84 OKLA. STAT. ' 44 (2001).
268. See Estate of Burgess, 1982 OK CIV APP 22, & 13, 646 P.2d 623, 625-26 (Okla.
Civ. App. Div. 1 1982); Leonard v. Prentice, 1935 OK 427, 43 P.2d 776 (Okla. 1935).
820 OKLAHOMA LAW REVIEW [Vol. 63:779
Oklahoma’s current statutory scheme. Oklahoma’s statutes clearly state
that a court’s ability to distribute property at the dissolution of a
marriage, from divorce or death, is subject only to a valid prenuptial
agreement C not a postnuptial agreement.
269
Oklahoma law as it stands
likely prohibits using a postnuptial agreement to create a new marital
contract; however, this does not reflect Oklahoma’s policy toward
favoring marital contracts. Oklahoma should amend title 84, section 44
and title 43, section 121 to give spouses the ability to use postnuptial
agreements to create new marital agreements. Giving spouses this
ability will not only mirror Oklahoma’s policy of favoring marital
agreements, but it could also offer spouses another way to resolve
marital disputes C disputes that might otherwise end in divorce had
spouses not been given the ability to control their property.
Stephen T. Gary
269. See id.
