Court Invalidates Post-Marital Agreement


In the case of Marriage of Mehren and Dargan (2004) 118CA4th1167, the Court of Appeal struck down a post-marital agreement that would award the family residence to wife if husband did not break his cocaine addiction. Christopher Dargan, an attorney with the Orange County Counsel’s Office, after marriage to Monica Mehren, entered into an agreement providing that wife “consented to resumption of marital relations on the condition that husband abstain from the deliberate, intentional use or ingestion of any mind-altering chemical or substance excluding such use that may be prescribed or approved by a medical doctor. In the event of such deliberate, intentional use or ingestion of any mind-altering chemicals or substances by husband, husband agrees he will forfeit all of his right, title and interest in (describe property).”


The parties signed the document before a notary public. Husband did not keep his promise and thereafter, wife filed for divorce asking that the property be confirmed to her as her separate property pursuant to the agreement.


The trial occurred before the Superior Court of Orange County, Sheila Fell, Judge presiding. The trial court concluded the agreement was enforceable and awarded the house to wife. Husband appealed and the Court of Appeal reversed. The court noted the difference between commercial contracts and contracts relating to marital relationships. Commercial contracts have a specific object that the parties generally enter into them intending the object to be achieved. On the other hand, marital contracts are often entered into with the expectation that material terms would never be carried out.


Our Supreme Court, in In re Marriage of Bonds, rejected a complete freedom of contract analysis in viewing marital contracts and the case recites a number of examples where contracts will not be enforced as violating public policy. There is also a distinction between contracts entered into pre-marital or post-marital, based upon the difference in the relationship (fiduciary after marriage) between the parties.


In viewing the parties’ agreement to transfer the house, the court must decide whether the agreement frustrates statutory regulation pertaining to marriage. The Court of Appeal found that it did. It found the agreement violated the statutory policy of a no-fault divorce. A similar case, Diosdado vs Diosdado, involved an Appellate Court striking down a written agreement entered into between husband and wife wherein they each promised to remain faithful to the other and provided $50,000 liquidated damages to be paid upon dissolution should either breach the agreement. In that case, the trial court found that the agreement violated public policy and the Appellate Court affirmed that finding, as the agreement violated California’s no-fault divorce laws.


The Court, in Mehren, found the analysis similar and appropriate for the agreement regarding the house. Specifically, the agreement attempted to compensate for emotional angst suffered during the marriage based upon conduct of the breaching spouse. The court found the contract attempting to avoid the no-fault provisions of the Family Code and had a legal objective rendering the contract unlawful.

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