A Separation Agreement Will Not be Voided as Promotive of Divorce If the Parties Had Previously Decided to Divorce

Husband and Wife married on July 27, 1948, and had two sons.  Husband and Wife separated in 1966. Wife remained in the family home and Husband moved to Portland.  In June 1967, Husband met and moved in with his fiancée.  He asked Wife for a divorce so that he could marry his fiancée.

In August 1967, Wife and Husband met with Wife’s divorce lawyer and executed a separation agreement under which Wife would seek a divorce in Nevada.  The agreement included provisions regarding the marital property and for Husband to make support payments to Wife for five years.

Wife moved to Las Vegas and hired a divorce lawyer who prepared a separation agreement under Nevada law requirements.  The new separation agreement also included terms for child support and custody that differed from those in the original agreement.  On September 22, 1967, Husband signed the new agreement in Los Angeles and returned it to Las Vegas for Wife to sign.

While the new separation agreement was being drafted, Wife became concerned that Husband would not fulfill his payment obligations.  Specifically, she was concerned about the child support payments.  Wife instructed her Nevada divorce lawyer to write to the fiancée and to advise her that Wife would not sign the new separation agreement or proceed with a divorce unless the fiancée agreed to guaranty Husband’s monthly alimony and child support obligations.  The fiancée signed the guaranty and returned it to Wife’s divorce lawyer.

After receiving the guaranty from the fiancée, Wife signed the property settlement agreement and obtained a divorce in Nevada.  Later that month, Husband married his fiancée, and for several months thereafter Husband made his support payments.

In September 1968 the fiancée’s divorce lawyer filed for divorce, which was granted in February 1969.  In September 1968, Husband stopped sending Wife support payments.  In August 1969, Wife obtained a judgment against Husband for the amount of $8,852.80, which included spousal support, child support, and medical insurance payments then due under the property settlement agreement plus attorneys’ fees and costs.  The judgment had not been satisfied as of the time this opinion was written.  In September of 1969, Wife’s divorce attorney demanded payment from the fiancée of the amount of the judgment, and after the fiancée refused, Wife’s divorce attorney sued her in October 1969.

The court found for Wife and ordered the fiancée to pay about $9,000.  The fiancée’s divorce lawyer appealed.  The Appellate Court affirmed.  Fiancée’s divorce attorney appealed to the California Supreme Court.

Among other arguments, the fiancée’s divorce attorney asserted that Husband and Wife’s separation agreement was contrary to public policy because its effect was to promote Husband and Wife’s divorce.  While the divorce courts will void agreements that are promotive of divorce, the parties may execute an agreement after the marriage had irreparably broken down.  Husband and Wife’s marriage was beyond redemption when they signed the separation agreement.  The guaranty agreement also did not promote the legal separation because by that time, Husband and Wife had already decided to divorce.  In other words, Husband and Wife would not have stayed together if they had not entered into a separation agreement and would not have stayed together without the fiancée’s guaranty agreement. The Court agreed with Wife’s divorce attorney and affirmed the lower court’s order.

Glickman v. Collins (1975) 13 Cal. 3d 852