Marriage of Ingels, In re, No. 78-221

Docket NºNo. 78-221
Citation42 Colo.App. 245, 596 P.2d 1211
Case DateMarch 08, 1979
CourtCourt of Appeals of Colorado

Page 1211

596 P.2d 1211
42 Colo.App. 245
In re the MARRIAGE OF Hubert E. INGELS, Appellee,
and
Dianne E. Ingels, Appellant.
No. 78-221.
Colorado Court of Appeals, Div. I.
March 8, 1979.
Rehearing Denied April 12, 1979.
Certiorari Denied June 25, 1979.

[42 Colo.App. 246]

Page 1212

Strand & Meadows, P. C., Edwin Strand, Colorado Springs, for appellee.

Sheldon, Bayer, McLean & Glasman, P. C., James T. Bayer, Denver, William H. Kirkman, Jr., Colorado Springs, for appellant.

PIERCE, Judge.

Wife appeals that portion of the trial court's decree of dissolution which, pursuant to an antenuptial agreement executed by the parties, determined that there was no marital property to be divided. Wife also appeals the court's order that the parties pay their own attorney's fees. We affirm.

Prior to their April 1968 marriage, the parties executed an agreement which provided, in pertinent part, that:

"The estate of each party shall remain and be his or her separate property, subject entirely to his or her individual control and use, the same as if he and she were unmarried; and neither party shall acquire by force of the contemplated marriage, for himself or herself, his or her heirs, assigns, or creditors, any interest in the other's property or estate, or the right to the control thereof, or any interest in the income, increase, rents, profits, or dividends arising therefrom; and it is further agreed that any property that [42 Colo.App. 247] either party may hereafter acquire or become entitled to shall be owned and held by him or her as though he or she had acquired it before the solemnization of said marriage; and each party hereby agrees in consideration of the contemplated marriage and of the covenants of each party herein set forth, that he or she will

Page 1213

waive, release, and relinquish unto the other party all right to the use and control of his or her separate property, and estate, and the income therefrom. . . ."

Husband petitioned for dissolution in April of 1977, and requested, pursuant to the antenuptial agreement, that no property division be made. Wife admitted that the marriage was irretrievably broken, but denied the validity of the antenuptial agreement.

The trial court found that the agreement was valid, and therefore ordered the parties to keep their own property, except that property which was acquired in their joint names during the marriage. At husband's suggestion, the court awarded wife $1,200 per month in maintenance to terminate in October 1978. It also ordered the parties to pay their own attorney's fees.

I.

Wife first argues that the antenuptial agreement is void as against public policy, because it is not limited to adjusting the parties' rights on death, and thus impermissibly "encourages" dissolution. We disagree.

Several cases in this jurisdiction have recognized that antenuptial agreements are generally valid and enforceable if the parties' marriage is terminated by death. See, e. g., Irwin v. Irwin, 150 Colo. 261, 372 P.2d 440 (1962); In re Estate of Abbott, 39 Colo.App. 536, 571 P.2d 311 (1977). The question of whether they are also generally enforceable in dissolution proceedings was specifically left open by the Supreme Court in Moats v. Moats, 168 Colo. 120, 450 P.2d 64 (1969), though two subsequent cases have implicitly answered this question in the affirmative. In re Marriage of Franks, 189 Colo. 499, 542 P.2d 845 (1975); In re Marriage of Thompson, 39 Colo.App. 400, 568 P.2d 98 (1977). We now make explicit the rule which was tacitly present in Franks and Thompson.

Courts have increasingly recognized that spouses-to-be have the right to enter into realistic antenuptial agreements which contemplate the possibility of dissolution, and have accordingly de-emphasized the traditional public policy argument that such agreements...

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12 practice notes
  • Osborne v. Osborne
    • United States
    • Massachusetts Supreme Judicial Court
    • November 13, 1981
    ...the approach of the Posner case. In re Marriage of Dawley, 17 Cal.3d 342, 131 Cal.Rptr. 3, 551 P.2d 323 (1976). In re Marriage of Ingels, 596 P.2d 1211 (Colo.App.1979) (holding limited [384 Mass. 598] to division of property). Parniawski v. Parniawski, 33 Conn.Sup. 44, 359 A.2d 719 (1976). ......
  • Lopata's Estate, In re, No. 80SA293
    • United States
    • Colorado Supreme Court of Colorado
    • March 1, 1982
    ...material information. Moats v. Moats, supra; In re Estate of Stever, 155 Colo. 1, 392 P.2d 286 (1964); In re Marriage of Ingels, 42 Colo.App. 245, 596 P.2d 1211 (1979); In re Estate of Lewin, supra; Linker v. Linker, 28 Colo.App. 131, 470 P.2d 921 (1970). 7 The appellant argues, however, th......
  • Newman v. Newman, Nos. 80SC169
    • United States
    • Colorado Supreme Court of Colorado
    • November 1, 1982
    ...of appeals expressly upheld the validity of an antenuptial agreement in a marriage terminated by dissolution. In Re Marriage of Ingels, 42 Colo.App. 245, 596 P.2d 1211 (1979). This court has recognized as valid antenuptial contracts dealing with property division on the death of one of the ......
  • Gentry v. Gentry, Nos. 89-SC-501-D
    • United States
    • United States State Supreme Court (Kentucky)
    • November 8, 1990
    ...change in public policy relative to divorce and have enforced antenuptial agreements in divorce situations. In In re Marriage of Ingels, 42 Colo.App. 245, 596 P.2d 1211 (1979), for example, the Colorado court rejected the notion that providing for the possibility of divorce necessarily prom......
  • Request a trial to view additional results
12 cases
  • Osborne v. Osborne
    • United States
    • Massachusetts Supreme Judicial Court
    • November 13, 1981
    ...the approach of the Posner case. In re Marriage of Dawley, 17 Cal.3d 342, 131 Cal.Rptr. 3, 551 P.2d 323 (1976). In re Marriage of Ingels, 596 P.2d 1211 (Colo.App.1979) (holding limited [384 Mass. 598] to division of property). Parniawski v. Parniawski, 33 Conn.Sup. 44, 359 A.2d 719 (1976). ......
  • Lopata's Estate, In re, No. 80SA293
    • United States
    • Colorado Supreme Court of Colorado
    • March 1, 1982
    ...material information. Moats v. Moats, supra; In re Estate of Stever, 155 Colo. 1, 392 P.2d 286 (1964); In re Marriage of Ingels, 42 Colo.App. 245, 596 P.2d 1211 (1979); In re Estate of Lewin, supra; Linker v. Linker, 28 Colo.App. 131, 470 P.2d 921 (1970). 7 The appellant argues, however, th......
  • Newman v. Newman, Nos. 80SC169
    • United States
    • Colorado Supreme Court of Colorado
    • November 1, 1982
    ...of appeals expressly upheld the validity of an antenuptial agreement in a marriage terminated by dissolution. In Re Marriage of Ingels, 42 Colo.App. 245, 596 P.2d 1211 (1979). This court has recognized as valid antenuptial contracts dealing with property division on the death of one of the ......
  • Gentry v. Gentry, Nos. 89-SC-501-D
    • United States
    • United States State Supreme Court (Kentucky)
    • November 8, 1990
    ...change in public policy relative to divorce and have enforced antenuptial agreements in divorce situations. In In re Marriage of Ingels, 42 Colo.App. 245, 596 P.2d 1211 (1979), for example, the Colorado court rejected the notion that providing for the possibility of divorce necessarily prom......
  • Request a trial to view additional results

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