Gentry v. Gentry

COMBS, Justice,

concurring.

I believe that in enacting the divorce code, particularly KRS 403.110 and 403.180, the General Assembly intended to effect some change in Kentucky divorce law, and not merely to codify selected elements of the common law. To me, the legislation represents a conscious departure from the policy reflected in the decision of Stratton v. Wilson, 170 Ky. 61 , 185 S.W. 522 (1916).

The Stratton holding deplored antenup-tial agreements contemplating the possibility of divorce and providing advance arrangements for alimony or maintenance. There was nothing, however, to prevent postnuptial agreements contingent on divorce and addressing not only the question of maintenance, but that of property distribution as well. I do not believe that KRS 403.180 was intended to leave the “ante-nuptial rule” of Stratton intact but uncodi-fied, while making statutory the established “postnuptial rule.”

KRS 403.110 mandates liberal construction and application of the chapter with the aim of promoting its underlying purposes, which are to:

(1) Strengthen and preserve the integrity of marriage and safeguard family relationships;

(2) Promote the amicable settlement of disputes that have arisen between parties to a marriage;

(3) Mitigate the potential harm to the spouses and their children caused by the process of legal distribution of marriage;

(4) Makes [sic] reasonable provision for spouse and minor children during and after litigation; and

(5) Make the law of legal dissolution of marriage effective for dealing with the realities of matrimonial experience by making irretrievable breakdown of the marriage relationship the sole basis for its dissolution.

KRS 403.110(l)-(5).

It is evident that the legislature considered the modem “realities of matrimonial experience,” one of which is the real possibility of “no-fault” divorce. The integrity of marriage is no more eroded by a contingency agreement made on the eve of marriage than by one made after the ceremony. The ends of amicable settlement of disputes, mitigation of harm, and reasonable provision of maintenance may all be subserved by a prior agreement. Indeed, a clear mutual understanding with respect to these issues before marriage may well foster a strong, enduring relationship — by allaying suspicions as to matrimonial motivation, for example.

KRS 403.180, when read in light of KRS 403.110, requires enforcement of antenup- *940 tial property and maintenance agreements not unconscionable:

(1) To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for maintenance of either of them, disposition of any property owned by either of them, and custody, support and visitation of their children.

(2) In a proceeding for dissolution of marriage or for a legal separation, the terms of the separation agreement, except those providing for the custody, support and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties, and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.

KRS 403.180(l)-(2). [Emphasis added.] The “parties to a marriage” are the same parties prior to marriage; subsection (1) does not exclude agreements between persons contemplating marriage. Disputes attendant upon separation may well be settled more amicably, more expeditiously, and more fairly when they are addressed by a pre-existing agreement. The statute does not require that the agreement be one made after separation or dissolution.

In my view, the Stratton approach has been overruled by the General Assembly.