Friday, August 26, 2005

Case Law Developments: Conditioning Consent to Adoption Makes Post-nuptial Agreement Void Against Public Policy

Stutz v. Stutz, 2005 Tenn. App. LEXIS 517 (August 23, 2005)

This case presents no real suprises as law goes.  Readers will not even be surprised to know that couples will use children as a bargaining chip.  What makes this case unique is that the bargaining was not during divorce but in negotiating a post-nuptial agreement in the 20th year of an intact marriage in order to convince a husband to consent to an adoption. 

Mom wanted a baby and was unable to conceive.  Dad did not want to adopt.  Mom agrees in a post-nuptial to surrender her equitable share of the $11 million dollar marital estate and in return for Dad's agreement to adopt a child. The case has plenty of excerpts from the agreement, letters and testimony to paint a vivid picture of the mindset of both Mom and Dad as well as the questionable role of the attorneys involved in drafting the agreement. 

The court, of course, held the agreement void as against public policy, stating that "An adoption should not be viewed as a business opportunity by an adoptive parent.... We find the agreement arrived at by these parties to be both cynical and self-serving."  Your students will see it as a "Believe It or Not" story. 

Full text of opinion on the web at http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/053/stutzlindaOPN.pdf

BGF

http://lawprofessors.typepad.com/family_law/2005/08/case_law_develo_4.html

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