Love LetterOn Valentine’s Day, Zack takes Kelly, his high school sweetheart who goes to a different college, to the Max for a romantic dinner.  At the end of the meal Zack says, “Kelly, I want us to promise each other that after college we’ll both move back to Bayside and get married.  Will you marry me?”  Kelly responds, “Oh Zack, that’s wonderful!  I love you so much and I promise.”  Delighted, Zack puts the engagement ring on Kelly’s finger and says, “That’s great Kelly!  Now there’s one more thing – I spent every dime I made working last summer on this ring.  Will you promise me that if we don’t get married after college you’ll return this ring?”  Kelly writes on her napkin “I promise to return my engagement ring if we don’t get married after college,” signs her name and gives it to Zack.


Two years later, Kelly decides to take make a surprise visit to Zack’s school one weekend.  When she arrives she finds Zack at a party kissing another woman.  “You two-timing slime ball!  We’re through and never getting married,” Kelly tells him.  Zack asks for the ring back and Kelly refuses.  Three months later Zack sues Kelly for the ring.  He still has Kelly’s napkin from Valentine’s Day.  Does he have a good case even though he’s a pig? 

Written Promises Around Engagements Are Enforceable

We covered this topic many years ago under a different fact scenario and the law has not changed since then.  Zack is entitled to the ring. Kelly promised in writing to return the ring if they did not get married after college.  Importantly, Kelly’s written promise was not conditioned on who broke off the engagement or why it was broken off.  Thus, Zack gets the ring although his actions caused Kelly to call off the engagement.

What if Kelly Didn’t Give Zack the Napkin?

Kelly probably gets to keep the ring because it was Zack’s fault that the engagement ended, even though Kelly called it off.  In the absence of an enforceable written agreement, Texas follows the conditional gift rule, which requires Kelly (the donee) to return the ring to Zack (the donor) if Kelly is at fault in terminating the engagement.  But, Texas courts allow the donee to keep the ring if the donee can prove that there was a justified reason for calling off the engagement.  Zack’s cheating should be enough, absent other facts.

Tilting the Scales in Your Favor

While some people might find the conditional gift rule offensive, other people may see it as a reasonable approach.  Regardless, it’s important to remember that if you have significant assets you are bringing into a new marriage, you may want to consult with an attorney about whether you should have a prenuptial agreement in place in case the marriage does not work out.

Richard and Rachel Rich married 30 years ago and enjoyed a tempestuous union ever since. One year prior to their marriage, Richard started up a small computer products company, Orange Computers. During the marriage, Orange Computers’ business skyrocketed after the introduction of their premier line of attractive digital personal assistants. Even after taking his business public, Richard still owned a majority share of Orange’s stock and was believed by the public to be the digital guru responsible for its success.

Continue Reading Protecting your Business from a Lack of “Wedded Bliss”

Corrie O. Graff and Dan Saul Knight are ice dancers competing at the 2010 Winter Games in Vancouver.  Graff and Knight have lived together for eight years in a North Dallas apartment adjacent to the Galleria, where they sneak onto the ice each night after the mall closes.   Besides competing together, the two have also been dating for almost 10 years.  After coming in a disappointing 22nd place (because Knight failed to properly execute a simple half twizzle), Graff said she is breaking up with Knight both professionally and personally and that she intends to find a new partner.  Knight is shocked by Graff’s statement and exclaims, “Break up?  I think you mean get divorced!”  Knight then tells Graff that since they have lived together for at least seven years in Texas, they have a common law marriage.  Is Knight correct?

Maybe.  Texas is one of a handful of states that recognize common law marriages.  A common law marriage makes you legally married the same as if you had been married in a church, had a wedding cake, exchanged rings and obtained a marriage license.  There is a common misperception that if a couple lives together for a certain length of time, they are common law married.  This is not true.  In order to have a common law marriage, three elements must be present.  First, you must agree to be married.  Second, you must hold yourselves out as husband and wife (e.g. represented to others that you were married to each other such as introducing your partner as “my husband” or filing joint income tax returns).  Finally, you must live together in Texas.  Depending on whether these elements are present will determine whether Graff and Knight can simply part ways or whether they need to get a divorce. 

Tilting the Scales in Your Favor:

If you become a male ice dancer, as hard as it may be, try to refrain from wearing a bedazzled outfit with pink tassles.  And, if you live in a state that recognizes common law marriages and you don’t want your relationship to become a common law marriage, you should be clear in your intention that you are not married and preferably sign an agreement to that effect.

Marianne Haste and William Arryme developed a close relationship through a popular online dating service.  After dating for several months, Marianne and William recognized that they were meant for each other and scheduled a Valentine’s Day wedding.  After a beautiful, fairytale wedding, the newlyweds were whisked away in a limousine to live happily every after.  Or so they thought.  That night, Marianne discovers that her new husband has certain “performance issues” that cannot be cured with a little blue pill.  During their brief courtship, William had somehow failed to mention his medical condition.  William seeks forgiveness.  Marianne seeks an annulment.  Can she get it?

Yes. The facts satisfy the limited conditions for an annulment, so a divorce is not necessary.  An annulment is the legal nullification of a marriage and reverts the spouses back to their status before the marriage.  In other words, the marriage is treated as though it never happened.  Divorce, on the other hand, treats marriage as having been terminated or ended.  Annulment can be granted immediately.  Divorce has a 60 day waiting period.

Now, back to our frustrated bride.  Under Texas law, a person may obtain an annulment if either party was permanently impotent at the time of the marriage.  So, if Marianne got married with the full expectation of being able to have normal sexual relations with William (and she didn’t know of his condition at the time of the marriage and didn’t voluntarily live with William once she found out), she can get an annulment.

Marianne or William may also seek annulment on the grounds that she/he was under 18 (and didn’t have parental consent to marry), that she/he was drunk at the time of the marriage, that she/he used fraud to obtain the marriage, that she/he was mentally incompetent at the time of the marriage, that she/he had concealed a divorce that was granted within 30 days of the marriage, that she/he are related by blood or that she/he had previously been married and never obtained a divorce.  The last two categories listed above are considered “void” marriages or marriages that never could have been, while the rest of the list are voidable marriages or marriages that never should have been.

See Texas Family Code Section 6.106.

Valentine’s Day is over and, despite the fading roses on Connie’s desk, Dale Dalliance and Connie Canoodle were adamant that they have no romantic involvement. That is, until the new company security camera caught them in a compromising situation in the warehouse last week. To compound the problem, Dale is married and is a line manager at Get Sacked. Connie works for Dale on his line and is also married … but not to Dale.

Recognizing the risk of liability to the company for workplace romances, their boss used to have a “no dating” policy. Now Get Sacked has a required consensual relationship agreement, or “love contract.” Under the new company policy, the employee handbook provides that “if a supervisor and subordinate are having a romantic relationship, it is the responsibility of the senior person to disclose the relationship to human resources or be in violation of the policy.” Get Sacked reserves the right to transfer one or both of Dale and Connie because they are in the same chain of command.

Can Get Sacked require a “love contract?” If signed, will a “love contract” end the exposure?

The jury is still out on “love contracts.” Probably to no one’s surprise they originated in California in the entertainment industry. While there are reported to be several thousand such contracts in existence TS finds no reported cases on them – only anecdotes of employees who sued and, when confronted with “love contracts” previously signed, dismissed their claims. Under the right circumstances it does seem appropriate for an employer to address office romances. After all, it is the employer who risks a retaliation claim once the relationship ends, not to mention the risk of decreased employee morale and productivity, and the appearance of unprofessional behavior to customers and vendors.

Tilting the Scales in Your Favor:

  • Any love contract policy should be incorporated into the employee handbook and be widely disseminated
  • The love contract should acknowledge
    • The relationship is voluntary and consensual
    • The employees agree to abide by the company’s conduct policies
    • They promise to report any perceived harassment to management
    • They agree to behave professionally and to not allow the relationship to affect their work
    • They agree to avoid behavior that offends others in the workplace
    • They agree not to engage in favoritism.
    • They are free to break up without adverse effects on their jobs.

Sally Svelte was just wild about Harry. They agreed to exchange traditional wedding vows – with just a couple of additions written into a prenuptial agreement.

Harry, smitten by Sally’s slender 120 pound figure and her famous Thanksgiving Holiday Pecan Pie, proposed that her weight must stay at 120 pounds.  The agreed contractual penalty for any excess?  $500 for each additional pound.

Not to be outdone, Sally suggested that Harry limit his Sunday football watching with friends to one game a week.  Sally also insisted that Harry curb his tongue around his in-laws.  His penalty for a violation?  $10,000. Both penalties were agreed to be paid from the violators’ separate property.

Is their prenuptial agreement enforceable?  Most likely.

Texas law recognizes all parties’ freedom to contract. Therefore, Texas allows spouses who enter into a premarital agreement to exercise the broadest possible freedom to arrange their marital property rights as they desire, so long as it does not violate public policy. So does Harry and Sally’s premarital agreement violate public policy? Parties may generally contract with respect to, “any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.” The provisions in their premarital agreement, while arguably not in the best interests of a successful marriage as some of us may know it, are probably not against public policy. It is therefore unlikely that a Texas court will find that Sally and Harry’s premarital agreement is illegal or inconsistent with or contrary to the public’s best interest. If it is not against public policy, it is enforceable.

Editorial Comment: Fortuitously, last week Scott Burns of the Dallas Morning News wrote an article “Prenuptial Contract Doesn’t  Bode Well,” who said, in part “… You may think I am a hopeless romantic, but if you are truly concerned about protecting [a prenuptial agreement], you may not be ready for the promises you make on the day you marry. It is not hopelessly romantic to believe, as I do, that a good marriage can only be achieved when you embrace those promises without reservation.”

Brad is madly in love with Jennifer. After dating her for a year, Brad proposes to Jennifer with a 5 carat Leo Diamond ring. Now, after only a few months, the engagement is off. Who gets the ring?

If Brad and Jennifer break-up (and there is no written agreement) the keeper of the engagement ring is decided by “the fault-based conditional-gift rule.” Much better than a rock/paper/scissors contest, this rule states that a gift delivered by a guy expecting to become a groom (i.e., an engagement ring) is given subject to the couple getting married.

Therefore, if Brad breaks the engagement because he decides he’s really in love with Angelina–not Jennifer–then Jennifer may keep the ring. On the other hand, if Jennifer gets a case of cold feet and breaks off the engagement, she has to give the ring back.

If both Brad and Jennifer agree to break up, then all bets are off, and they must return each other’s gifts. If Brad and Jennifer do actually “tie the knot,” all gifts “exchanged in the contemplation of marriage are the absolute property of the recipient.”

For more information about the ownership of engagement rings and the law in Texas affecting other gifts before marriage, see Curtis v. Anderson,106 S.W.3d 251 (Tex. App. Austin 2003). As for all those other gifts that your family and friends bought when Brad and Jennifer got engaged, please consult Ms. Manners.