Thank You For Submiting Feedback!
Any agreement for divorce, or any collateral bargaining promotive of it, is considered unlawful and void. Under the state code, either husband or wife may enter into any agreement or transaction with the other, or with any other person, respecting property, which either might if unmarried. Notwithstanding this freedom to enter into any contract between themselves or with other persons, it has been held in this state repeatedly that an agreement between husband or wife founded upon a consideration to withdraw or abandon a defense to a suit for divorce, or do anything to facilitate procuring the same, is illegal and void.
Respondent wife, Perry Whiting, instituted divorce proceedings on the ground of cruelty. Appellant husband, Lillie L. Whiting, filed a cross-complaint on the ground of cruelty and desertion. The trial court denied relief to either party, decreed that each party pay its own costs, and denied the wife's motion for alimony and attorneys' fees. The husband appealed from such decree. Subsequently, the wife filed a motion for an order requiring the husband to pay costs and attorneys' fees on appeal and for alimony pending the appeal, which was granted. The husband sought review of the decision, averring that the order cannot be sustained, as the wife had ample means for support and costs. The husband further noted that the antenuptial contract, entered into between the parties, precluded the court from making any order for alimony, costs, and attorneys' fees.
Under the circumstances, did the trial court err in ordering the husband to pay alimony, costs, and attorneys’ fees to the wife?
The court affirmed and held that the trial court was not precluded from making the allowance for alimony, costs, and fees on account of its previous decree denying the same to the wife because there was no authority in support thereto. The court held that the husband's contention that the trial court erred because the wife had ample means for her support and costs was meritless, based on the trial court's evaluation of both parties' assets. Moreover, the trial court's finding that the wife had not deserted the husband controlled and could not be overturned as a basis for denying her the awarded costs and fees. The court also held that the antenuptial contract between the parties was absolutely void. According to the court, an agreement between husband or wife founded upon a consideration to withdraw or abandon a defense to a suit for divorce, or do anything to facilitate procuring the same, was illegal and void.