December 18, 2008

Ask The Lawyer

Agreements need to be free and voluntary, not forced, acts

This week's question:
Several months ago, my wife had me sign a marital settlement agreement and now I am not so sure that I did the right thing. I really believe she forced me to sign it even before I was allowed to see my own attorney. Are there any rules that apply in this situation?

George G.
Almaden Valley


Dear George,
You bet there are rules that apply in your situation and in other situations like it. In short, agreements must be free and voluntary acts and not the product of duress and undue influence.

A 2006 case is a good example to read when it comes to duress and undue influence. The case is entitled In re Marriage of Balcof, and it arose in Orange County.

In the Balcof case, Ralph and Kathleen were married in 1988. They had two children, daughter Kelsey born in 1990 and son Andrew born in 1992. In October, 1999, Ralph and Kathleen signed a writing concerning Ralph’s separate property $2 million residence in Laguna Beach and a 20 percent portion of the stock in Ralph’s separate property corporation.

The October 1999, writing was at issue in the case. Ralph contended that Kathleen forced him to sign the document under duress and undue influence. Kathleen contended that it was a valid agreement and transmuted or changed the character of some of Ralph’s separate property into Kathleen’s property.

Facts recited by the Court of Appeal in the court decision were interesting. A short time before their marriage, Ralph and Kathleen had signed a prenuptial agreement that confirmed Ralph’s separate property holdings of several million dollars. Kathleen’s assets were “minimal.” The prenuptial agreement evidently was not an issue in this case.

Marital disharmony erupted and differences arose, shall we say. In October, 1999, the parties were together at an inn, at which time Kathleen had Ralph write and sign this “agreement:”

“I, Ralph Balcof Deed over all Interest in our house at 770 Pelican Dr.—Laguna Beach—also 20 percent interest (stock) in Bolcof Plastic Materials. This will be legal by Dec. 1, 1999. P.S. I will pay $1000 a day penalty if this is not done by Dec. 1.”

Both Kathleen and Ralph then signed the “agreement.” However, the Court of Appeal found that the agreement was not a free and voluntary act of Ralph since Kathleen had repeatedly threatened Ralph with divorce and the obstruction of his relationship with their children if he did not prepare and sign the writing. Also, Kathleen repeatedly harangued and berated Ralph during the marriage in an effort to force him to modify the parties’ prenuptial agreement to provide more security for her.

Kathleen also, according to the Court of Appeal, physically struck Ralph on several occasions, and screamed at Ralph for at least 45 minutes immediately preceding his writing and signing the October 1999 document, which screaming included threats of divorce and obstructing Ralph’s relationship with the minor children if he did not make and sign the “agreement.” It was also noted that Kathleen dictated word-for-word what Ralph wrote in the document. Ralph testified that he did not understand the legal effect of what he was forced to write down and of course he did not have the opportunity to consult with his attorney before the episode in the hotel room.

The Court of Appeals cited Family Code §721, subdivision (b) to the effect that husbands and wives “are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. . . If one spouse secures an advantage from an interspousal transaction, a statutory presumption arises under §721 that the advantaged spouse exercised undue influence and the transaction will be set aside.”

The trial court’s finding was upheld by the Court of Appeal when it held that Kathleen exerted undue influence and duress on Ralph in order to obtain the October 1999 writing in direct response to her on-the-spot demands and latest tirade.

You can read the In re Marriage of Balcof case for yourself by going online to your favorite search engine. Enter the name of the case or the citation, 141 Cal.App.4th 1509, 47 Cal.Rptr.3rd 183. I personally like the California Court of Appeal web site because it’s free of incessant advertising. As always, you will want to read the case in consultation with your own attorney to see how the case may or may not apply to you in your particular situation.

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. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. 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.