Family Law Corner: Is Post Nuptial Agreement King?
According to the tabloids, two years ago, King had an affair with Southwick’s younger sister. In order to prove his commitment to the marriage, King signed a post-nuptial agreement. This agreement transferred title of three valuable properties to Southwick and declared his entire fortune (about $144M) community property. Now Southwick has filed for divorce and King has asked the court to declare any “purported transmutation agreement” of property to be “null, void and unenforceable.”
King is claiming the post-nuptial agreement is invalid based on undue influence. According to reports, because Southwick was so irate about the purported affair, she “strong-armed” King into getting advice from her “powerhouse” divorce lawyer, Joe Mannis. However, it is reported that King first took the agreement to his own mega-divorce lawyer, Dennis Wasser, who ordered him not to sign it. It was only then that Southwick’s lawyer gave King a list of three other attorneys with whom King could consult. He chose Mannis’ former law partner (supposedly because his office was near King’s favorite deli) and signed the agreement.
Family Code section 852 states that any transfer of title on real or personal property is not valid unless in writing. This means that there was nothing on the face to prevent King from transferring what would have been his separate property to his wife through a written post-nuptial agreement. However, King is claiming the agreement is invalid on the basis of undue influence, presumably because Southwick’s attorney was the former law partner of King’s attorney.
Based on a number of family law cases (in particular, In re Marriage of Haines (1995) 33 CA4th 277 and In re Marriage of Burkle (2006) 139 CA4th 712), any interspousal transaction that gives an unfair advantage to one spouse raises the presumption of undue influence. This means that the burden is on Southwick to show that King entered into the transaction freely and voluntarily with full knowledge of the facts and the effect of his action. (In re Marriage of Balcof (2006) 141 CA4th 1509).
Since King had an attorney represent him in the transaction and a second attorney tell him not to sign the agreement, it appears that King had the requisite knowledge and understanding when he entered the agreement. The fact that King has gone through so many divorces will likely be used by Southwick to show that King understood the full effect of his actions. It is interesting to note that despite how many times he has been married, King has never had a pre-marital agreement. Based on the lack of a pre-marital agreement and the existence of a post-marital agreement, King stands to suffer a significant financial loss if this divorce happens. It may not be surprising then that as of the writing of this article, King and Southwick are in a two-week “truce” in their divorce battle. For King’s financial welfare, a lot is riding on making this truce permanent.