holding that obstructive tactics and conduct can justify an award of attorney’s fees
How later courts described this case
- holding that obstructive tactics and conduct can justify an award of attorney’s fees
- overruling Stratton v. Wilson, 170 Ky. 61, 185 S.W. 522 (1916)
- agreement enforceable where “the terms of the agreement were not “manifestly unfair”; agreement “did not attempt to limit or deny maintenance or support”
- premarital agreement not unconscionable where it applied equally to both parties even though their respective financial conditions were disparate
Written by the judges who cited it.
The opinion
LEIBSON, Justice,
concurring.
I concur in the Majority Opinion as written.
The Majority Opinion states on p. 934: “A majority of this Court does not find [KRS 403.190(2)(d) ] to be a clear statement of intent specifically to authorize such agreements.”
I am part of the minority who believes this statute intends to authorize prenuptial agreements.
KRS 403.190(2) provides:
“For the purpose of this chapter, ‘marital property’ means all property acquired by either spouse subsequent to the marriage except:
(a) Property acquired by gift, bequest, devise, or descent;
(b) Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(c) Property acquired by a spouse after a decree of legal separation;
(d) Property excluded by valid agreement of the parties; and
(e) The increase in value of property acquired before the marriage to the extent that such increase did not result from the efforts of the parties during marriage. [Emphasis added.]
Sub-paragraph (d) of the above statute, incorporated from the Uniform Dissolution of Marriage Act, has been accepted by courts of other jurisdictions as a statement of significant public policy change permitting antenuptial agreements to provide for the disposition of property upon dissolution of the marriage:
“Persons competent to contract may execute a valid antenuptial agreement. Although the law prescribes the rights of a husband and wife in the property of each other, persons may, by agreement, exclude the operation of the law and determine for themselves what rights they will have in each other’s property during the marriage. (Volid v. Volid, (1972) 6 Ill.App.3d 386 , 286 N.E.2d 42 ). In addition to property owned prior to the marriage, the parties may also define their rights to property acquired by a spouse later in the marriage.” In re Marriage of Burgess, 123 Ill.App.3d 487 , 78 Ill.Dec.345, 462 N.E.2d 203 (1984).
By virtue of KRS 403.190(2)(d), a husband and wife in Kentucky may define by agreement their rights in each other’s property, regardless of any rights which would otherwise have been excluded or conferred by KRS 403.190. Such agreements, provided they are otherwise valid contracts, are *941 entitled to enforcement upon dissolution of the marriage.
JAMES G. SHEEHAN, Jr., Special Justice, joins this concurring opinion.