July 29, 2004

Devries Column

Forfeiting community property usually cannot be based on fault

This week’s question:
My wife is a good woman except for one problem. She likes alcohol too much. She has promised me that this time she has quit drinking for good and if she breaks her promise, I can have all of our community property. She has also agreed to put that in writing and sign it before a notary public. Will this contract hold up in court?

Patrick P.
Almaden Valley

Dear Patrick:
Needless to say, Patrick, this is a tough one—for her and for you. Fortunately, we have some guidance from a recent Court of Appeal Case that is somewhat like your situation.

The case is In re Marriage of Mehren, 118 Cal.App.4th 1167, 13 Cal.Rptr.3d 522, 4 Cal. Daily Op. Serv.4389, 2004 Daily Journal D.A.R. 6076 (Cal.App. 4 Dist. May 21, 2004) (NO.G032291). In that case arising from Orange County, Monica and Christopher were married for many years.

Christopher had suffered an off-and-on addiction to cocaine for many years. The Court said that it was “not necessary for us to relate his unsuccessful attempts to free himself from his addiction other than to note that several years after their marriage, the parties separated after another episode resulting from husband’s use of cocaine.”

Monica and Christopher signed an agreement entitled “Agreement re Transfer of Property.” The agreement recited that wife “consented to the resumption of marital relations on the condition that Christopher 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.

And then the key provision— “In the event of such deliberate, intentional use or ingestion of mind-altering chemicals or substances by husband, husband agrees that he will forfeit all of his right, title and interest in [described property].” Monica and Christopher signed the agreement before a notary public.

As you might have guessed, Christopher did not keep his promise and fell into illicit drug use once again, resulting in more marital disharmony. Monica couldn’t take it any more and filed for divorce, asking that the agreement be approved and that all of the property described in the agreement be awarded to her as her separate property.

Although the trial court ruled in favor of Monica, upheld the agreement and awarded the listed community property to her, the Court of Appeal reversed the trial court and held the agreement unenforceable. In the words of the Court of Appeal:

“...Marriage is a highly regulated institution of undisputed social value; we must decide whether the statutory regulations pertaining to marriage would be frustrated were we to enforce the agreement. We answer this query in the affirmative. Because the conduct of one spouse would affect the division of community property, the agreement frustrates the statutory policy favoring no-fault divorce.”

In short, the Court of Appeal threw out the agreement since it violated public policy—the public policy of California of no-fault divorce.

One note of caution—this case is a very recent case, and it could possibly still be changed by the California Supreme Court as of this writing.

Thanks to modern electronics, you can read the case for yourself if you wish by going to a free Web site. (You may be asked to register, but there is no fee as such.) Here is the link: http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2004/g032291.html.

So, good luck, Patrick. I hope somehow everything will work out OK for you and your wife.

Donald J. DeVries
Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Want to learn about a specific legal issue or how DeVries can help you? Visit his web site at www.almadenvalleylawyers.com. Almaden Times columns since 1986 are available there. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.