Topic: Professions & Institutions

"Disposable Spouse"

Carol Rosendale, like most married people, probably recited the marriage vows including “for better or worse” with the usual amount of skepticism. What she didn’t expect, apparently, was for her husband to invoke their prenuptial agreement when he decided to dump her when the lingering results of a near fatal collision with a bus left her as “damaged goods.” The former vivacious blonde wife of Warren Rosendale is now disfigured, disabled, brain-damaged, hard of hearing, unable to experience odors and in pain, so her husband wants out. He says she is bound by their “pre-nup”, which limits his obligations to her to $100,000 once the marriage is dissolved. She says this is unconscionable, unfeeling, mean and wrong, and her earlier contract with him should be voided. She feels, she says, like a “disposable spouse.”

Yes, it’s ethics versus law again, with those whacky California courts weighing in on the side of ethics. Mr. Rosendale is a cad and a creep, they say, and the prenuptial agreement shouldn’t protect cads. They cite a 2002 change in the law that says a limitation on spousal support shouldn’t be upheld when it “shocks the conscience of the court.”

Mr. Rosendale is certainly an unsavory character to insist on the letter of their agreement when his wife has fallen on such hard times. The good and ethical thing would be to show kindness and generosity and to do everything he can to help her, even if he ends the marriage. But that doesn’t mean he has a legal obligation to do so. His obligation is ethical only, and because our society increasingly looks to the law rather than to ethical obligations when injustice rears its ugly head, Mr. Rosendale, like so many others, doesn’t see it. She signed a contract, damn it, of her own free will! Why is it fair for her to be able to ignore the contract just because abiding by her agreement isn’t easy or convenient?

Well, he has a point, and there are even ethical authorities on his side. This is the dark side of utilitarianism, for while it may well seem cruel to hold the devastated Mrs. Rosendale to her prenuptial contact terms, the principle the California courts would use to by-pass it could cause chaos down the line. In time, every spoiled major league athlete who signed a long term contract and then found him or herself being grossly underpaid according to the going rate would be able to demand new terms in the interest of “fairness.”

If a contract can’t be enforced, it isn’t a contract, and society needs some way to record and enforce agreements undertaken voluntarily, even if they don’t work out well for both parties. Mr. Rosendale’s lawyer has a point when he says, “If you can set aside an agreement because someone is injured many years later, next week some other judge will set aside an agreement because someone’s depressed.” Right you are. Trophy wives for example, often bargain their youth and appearance for the wealth, prestige and security older husbands can offer (think Anna Nicole Smith).

The California courts are apparently saying that if the wife gains 80 pounds and no longer registers on the babe-o-meter, that’s an acceptable reason to give her the heave-ho with a pre-nup intact, but if she loses her trophy status due to a runaway bus, that’s unconscionable. How long will that distinction hold? Professional babes who are 80 pound over-weight are disfigured too. )Think Anna Nicole SmithÂ… pre-Trimspa.)

On the other hand, the law shouldn’t go out of its way to protect rotters at the expense of grievously injured women, and this may best be viewed as a transitional case. Perhaps now the legislature or simply alert attorneys will require that any pre-nuptial agreement must include a disability provision that guarantees that the wealthy party won’t throw his or her damaged spouse to the wolves when misfortune strikes. Courts are supposed to enforce the law, not ethical values, but responsible courts can use one to support the other. That appears to be what the California courts are attempting to do, and any lawyer or ethicist who is inclined to be critical better think hard about whether any principle that aids and abets the likes of Warren Rosendale is as important as we thought it was.

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