Recent Development by Tina Boudreaux
Michael McAlpine and Jonnie Fox entered into an antenuptial agreement in 1989, approximately one week prior to their marriage. The antenuptial agreement provided that both parties would waive their rights to alimony pendente lite and permanent alimony. The parties also agreed to a separate property regime and agreed that Jonnie Fox would receive $25,000 at divorce if the parties were married for less than six years or $50,000 if they remained married for six years or more. The parties were divorced on May 18, 1992.
In October 1992, Jonnie Fox McAlpine filed a rule to show cause why she should not be awarded permanent alimony pursuant to Louisiana Civil Code Article 112 and why a Mercedes Benz allegedly given as a gift from her husband should not be returned to her. Louisiana Civil Code Article 112 allows a spouse who has not been at fault and who does not have sufficient means for his or her support to collect post-divorce alimony from the more financially able spouse. The trial court concluded that the Mercedes was not a gift. The court also held that the antenuptial agreement between the parties was enforceable, waiving Jonnie Fox McAlpine's rights to any claim for permanent alimony. The Louisiana Fourth Circuit Court of Appeals reversed the trial court's ruling on this issue, holding that antenuptial agreements were void as against public policy pursuant to Louisiana Civil Code Article 7. Article 7 provides that “[p]ersons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity.”
The Louisiana Supreme Court affirmed the Fourth Circuit's judgment in February 1995, concluding that the Louisiana legislature enacted Article 112 to protect the public interest and that an antenuptial waiver of permanent alimony was against public policy. On rehearing, the Louisiana Supreme Court reversed its earlier decision and held that permanent alimony is intended to protect individuals and not the public interest and that antenuptial agreements waiving permanent alimony are not void as against public policy as long as they adhere to general contract principles. McAlpine v. McAlpine, 679 So. 2d 85 (La. 1996).
About the Author
Tina Boudreaux.
Citation
71 Tul. L. Rev. 1339 (1997)