In Re the Marriage of Newman

PIERCE, Judge,

dissenting.

I would affirm the trial court on all issues.

I do not agree with the majority’s conclusion that an antenuptial agreement which determines spousal maintenance in the event of dissolution of marriage is invalid as against public policy.

The public policy involved in “No Fault” dissolution statutes is discussed at some length in Posner v. Posner, 233 So.2d 381 (Fla.1970). The modern trend has been to hold that antenuptial agreements fixing maintenance are valid. As stated in H. Clark, Antenuptial Contracts, 50 U.Colo.L. Rev. 141 at 149 (1979):

“It is certainly not demonstrable as a general proposition that an agreement respecting alimony made before marriage promotes divorce. On the contrary, it may promote marital stability, providing it is arrived at fairly and makes adequate provision for both spouses, footnote omitted In any event, it will reduce the hostility and destructiveness of a divorce if one should occur. Furthermore, in the many states which now have adopted marriage breakdown or a similar ground for divorce, there is no longer as much reason as formerly to be hostile to agreements which facilitate divorce. By adopting this ground for divorce these states have recognized that nothing is to be gained by trying to hold spouses together when in fact their marriage has broken down. The antenuptial agreement in such states can hardly be more conducive to divorce than the divorce grounds themselves.”

The majority here bases its decision that antenuptial agreements fixing maintenance are invalid on a purported legislative intent inferred from the wording of § 14-10-113, C.R.S. 1973, and on a statement from In re Marriage of Stokes, Colo.App., 608 P.2d 824 (1979), to the effect that separation agreements and antenuptial agreements represent distinctly different concepts and the principles applicable to one are not applicable to the other.

While it is true that § 14-10-113, C.R.S. 1973, does specifically provide for judicial recognition of agreements between the parties relating to property, this provision is contained in the statutory definition of “marital property,” and only states that marital property does not include “property excluded by valid agreement of the parties.” The Uniform Dissolution of Marriage Act contains no reference to antenup-tial agreements, and it was not a legislative action, but rather a judicial interpretation of this court in In re Marriage of Ingels, Colo.App., 596 P.2d 1211 (1979), which determined that § 14-10-113, C.R.S.1973, applies to antenuptial agreements covering disposition of property. As a result, I find it difficult to attribute to the General Assembly a specific intent to prohibit ante-nuptial agreements relating to maintenance only because they are not provided for by statute.

With respect to Stokes, that opinion dealt with an antenuptial agreement which related to the disposition of property, but which, as specifically found by this court, did not deal with maintenance. I would, therefore, read that language in Stokes which purportedly applies to antenuptial agreements in general to be limited to those portions of antenuptial agreements dealing only with property. In particular, I would rule that, contrary to the majority’s reading of the holding in Stokes, when considering maintenance as opposed to the disposition of property, there is much more similarity than dissimilarity between antenuptial agreements and separation agreements.

Section 14-10-112, C.R.S.1973, specifically allows the parties to a marriage contemplating separation or dissolution to provide for maintenance by an agreement that is binding on the court unless it is found to be unconscionable. In view of the obvious intent of this statute to allow the parties to exercise their right to contract, I would find the reasoning in In re Marriage of Ingels, supra, and In re Marriage of Franks, 189 Colo. 499, 542 P.2d 845 (1975), regarding the validity of antenuptial agreements in general to be equally persuasive with respect to maintenance provisions. I see no reason stated or implied in the statutes or any significant difference in public policy which justifies validating antenuptial agreements dealing with property rights but not those pertaining to maintenance.

In response to the argument that an appropriate maintenance award could not be accurately foreseen at the time the ante-nuptial agreement was entered into, I would suggest that (1) the same problem exists with respect to, but has not precluded, antenuptial agreements relating to the division of property, and (2) the solution to this problem lies in the test to be used by the trial court in determining the validity of the maintenance agreement. The court would initially determine, as with an ante-nuptial property agreement, whether the parties entered into the agreement with full knowledge of its consequences, and whether any fraud was involved. Stokes, supra. Additionally, however, the court would determine, as with a maintenance provision in a settlement agreement, whether the maintenance provision is unconscionable at the time of the hearing. Section 14-10-112, C.R.S.1973. In this context, an agreement not unconscionable would be one determined by the court to be fair, reasonable, and just. In re Marriage of Wigner, 40 Colo.App. 253, 572 P.2d 495 (1977).

Because the trial court here found this antenuptial agreement to be free of fraud and misrepresentation, and because it did not find the agreement to be unconscionable, I would affirm its conclusion that the maintenance provision of this agreement was binding on the parties.