APPEAL from the Circuit Court of Cook County; the Hon. HYMAN
FELDMAN, Judge, presiding.
MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 19, 1974.
Defendant, Rudolph Eule, appeals from a series of orders of the circuit court of Cook County directing him to pay temporary alimony and attorneys' fees to plaintiff, Joy M. Eule, and her attorneys, as well as temporary alimony pendente lite and attorneys' fees pendente lite during the prosecution of the appeals to this court.
Plaintiff has been married six times. Defendant has been married nine times. The parties have been married to each other three times. No child was born or adopted during these three marriages. Plaintiff bore three children by Victor Goulding, to whom she was married twice and whose last marriage immediately preceded the present one. Plaintiff had a fourth child by another husband, and that child was later adopted by Goulding. Plaintiff and Goulding dissolved their second marriage on November 17, 1971, and their divorce decree contained a property settlement.
On the following day, November 18, plaintiff and defendant remarried. Immediately prior to the ceremony in the city of Chicago, the two executed an antenuptial agreement. The document contained recitals acknowledging their previous unsuccessful marriages and recognizing the uncertainity of their pending marriage. The parties stated therein the value of their assets. Plaintiff's assets, consisting of proceeds from the sale of her house and of securities, totaled $45,000. Defendant attached an exhibit to the agreement detailing his present aggregate worth at death to be $600,000. The agreement contained a death-benefit provision, which guaranteed plaintiff a minimum of $50,000 of defendant's assets at the latter's death and which provided $1,000 to defendant at plaintiff's death from her assets. The agreement also contained a forfeiture clause, providing essentially that if either party, regardless of fault, separated from the other or filed a suit for separate maintenance or divorce within 7 years of the date of the marriage, that spouse waived any right he or she might have against the other for "alimony, dower, support or otherwise under any law." The agreement was signed by both parties in defendant's attorney's office, notarized, and witnessed.
Fifty-four days later, plaintiff left their abode and went to Florida. She came back to Chicago in February, 1972, packed her belongings, and returned to Florida.
On February 1, 1973, plaintiff filed an amended complaint for divorce or, in the alternative, separate maintenance, charging mental cruelty. After hearings were held on plaintiff's motion for temporary alimony and attorneys' fees, the trial court ordered defendant to pay her $167 per week for temporary alimony and support and $3,050 to her attorneys for temporary fees. Defendant appealed the trial court's denial of a motion to vacate that order. Thereafter, the court ordered defendant to pay $167 per week in temporary alimony pendente lite and additional attorneys' fees of $1,500 pendente lite. Defendant appealed from that second order. Defendant then filed a counter-complaint for divorce, charging desertion, and the court awarded plaintiff temporary alimony in the amount of $750 per month not to exceed 6 months and her attorneys $1,000 to defend against the counter-complaint. When defendant appealed from this third order, the court granted plaintiff temporary alimony pendente lite in the amount of $750 per month not to exceed 6 months and attorneys' fees of $1,500. Defendant also appealed from this order, and the four appeals have been consolidated for our review.
Defendant contends that the trial court erred in refusing to enforce the forfeiture clause of the antenuptial agreement; that the trial court abused its discretion in granting plaintiff temporary alimony, temporary alimony pendente lite, her attorneys' fees, and her attorneys' fees pendente lite; and that the hearings were not conducted in a fair and impartial manner consistent with the requirements of due process. Plaintiff responds that the antenuptial agreement is void as against public policy; that the trial court's decisions as to temporary alimony and attorneys' fees were proper and supported by the evidence; and that the hearings were conducted fairly and without substantial prejudice to defendant.
We must first consider the issue of the validity of the forfeiture clause contained in the antenuptial agreement.
• 1, 2 Persons competent to contract may execute an agreement prior to marriage settling in advance the rights of the respective spouses in the property of each other at the date of either's death. (Seuss v. Schukat (1934), 358 Ill. 27, 192 N.E. 668.) Marriage is sufficient consideration for such a contract. (Guhl v. Guhl (1941), 376 Ill. 100, 33 N.E.2d 185.) The validity of such a contract depends upon whether the parties have knowledge or reasonably ought to have knowledge of the extent of each other's property, mindful that one's waiver of rights in the other's property or the grant of a disproportionate sum in his property shall raise a rebuttable presumption of concealment. Megginson v. Megginson (1937), 367 Ill. 168, 10 N.E.2d 815.
• 3 Whether or not these principles of law should be applied to a premarital agreement which attempts to regulate or modify statutorily created rights upon the separation or divorce of the spouses is an issue which has created much debate. Characterizing such a clause as an invitation to promote discord and instability in marriage, the majority of jurisdictions hold a provision which attempts to modify such statutory rights to be invalid per se. (See Norris v. Norris (Iowa 1970), 174 N.W.2d 368; Fricke v. Fricke (1950), 257 Wis. 124, 42 N.W.2d 500; Crouch v. Crouch (1964), 53 Tenn. App. 594, 385 S.W.2d 288.) The trend in the law, however, is for courts to analyze the terms of these clauses on a case-to-case basis and uphold their validity if they are fair and reasonable. (See Posner v. Posner (Fla. 1970), 233 So.2d 381; Unander v. Unander (Ore. 1973), 506 P.2d 719; Buettner v. Buettner (1973), 89 Nev. 39, 505 P.2d 600.) As shall be seen later, this court's decision in Volid v. Volid, infra, places Illinois in agreement with the recent trend.
The issue that must be resolved by us in the present case is a narrow one whether the trial court was correct in refusing to enforce the forfeiture clause of the antenuptial agreement insofar as it waived either spouse's right to support or temporary alimony during the marriage, if the marriage broke down within 7 years of the date of the wedding.
• 4, 5 Courts in this state have consistently held void clauses in postnuptial agreements which attempted to avoid the husband's legal duty of support during marriage. (Threw v. Threw (1951), 410 Ill. 107, 101 N.E.2d 515; Berge v. Berge (1937), 366 Ill. 228, 8 N.E.2d 623.) Logic dictates that the same result shall occur when such a clause is included in an antenuptial agreement. (See Lindsay v. Lindsay (Fla. App. 1964), 163 So.2d 336.) By the very wording of the clause in this case, if either spouse, regardless of fault, separated from the other within 7 years of marriage, he or she gave up her statutory right to seek support or temporary alimony. We believe the trial court was correct in refusing to enforce this forfeiture clause in regard to temporary support and alimony.
Defendant relies upon Volid v. Volid (1972), 6 Ill. App.3d 386, 286 N.E.2d 42, in his effort to support his position. In that case the parties entered an agreement prior to marriage in which they specified that in the event of a decree of separate maintenance or divorce the husband would pay to his spouse a lump sum settlement of $50,000 if the decree were entered after 3 years. The lump sum settlement was in lieu of her rights to property, alimony and support. When the husband filed suit for divorce after the 3-year period, the wife counter-claimed for separate maintenance and successfully sought temporary support. This ...