From: kevin@rotag.mi.org (Kevin Darcy)
Subject: Re: Pre-Sex Contract
Keywords: sex, agreement, legal, contract
Organization: Who, me???
Date: Sun, 20 Dec 1992 00:40:07 GMT

In article <yooHVB1w165w@dogear.spk.wa.us> bobk@dogear.spk.wa.us (Bob Kirkpatrick) writes:
>dkeisen@leland.Stanford.EDU (Dave Eisen) writes:
>
>> Yes, it would be thrown out of court. Nobody is arguing with
>> how our legal system would handle this contract. The topic
>> being discussed is how the legal system *should* handle this
>> contract.
>
>Well, wait a minute. First you say that this is a "what if" and
>then say that he's wrong. Since your premise is speculation, how
>can someone be 'wrong?'
>
>which see:
>> But you're wrong. This discussion is not about two parties 
>> contracting to deprive a third of funds. The father is still 
>> liable for the usual child support. But the contract requires 
>> the mother to reimburse him for these expenses. And other than
>> people saying this is "unconscionable" which seems to be a 
>> synonym for "icky", nobody has explained to my satisfaction
>> why a man and woman should not be able to contract to do this.
>
>a) You're saying then, that the mom should take the support money, 
>and then send it back to the father? What is the difference between
>not taking the money and sending it back? What-if or not, I don't
>think anyone would ever get a court to consider that a distinction.

The distinction is that it's HER money, not the child's. If she should
ever become unable to provide both her share of child support AND the
reimbursements, then it's the reimbursements that get cut first, i.e.
the man gets to be "on the hook" for the shortfall.

>b) 'unconscienable' is the term that I applied to this. I also gave 
>the legal definition from Black's, which said essentially the same 
>thing as the Revised Codes of Washington did. Paraphrased, it applies
>a financial incentive [read pressure] for the woman to undergo an 
>abortion, since it absolves the man of any responsibility should she
>fail to abort. 

See above. He still has the same statutory obligations regardless. 

>Second, it fails to recompense the female for her
>participation in the contract 

I have already identified the man's consideration:

	A) A 50% (or higher) subsidy of the cost of her abortion, if she
	   should choose that option

	B) Man agrees to waives all rights to custody, if she chooses to have 
	   the child

	C) Man agrees to waive all visitation rights.

There is valuable consideration, in other words. Whether it's a "good deal"
is of course up to the woman to decide. No-one's forcing her to sign it.
But if she does, I can't see how the courts can decline to enforce the
contract.

>> Of course, if she can't afford to reimburse him, he would still
>> be responsible for the child support. But she still owes him
>> the money and he should be able to recover what she owes him by
>> using whatever means our legal system provides for collecting
>> debts.
>
>Taking the money away from the child's household. In other words,
>making an unlawful refund. Unlawful because the support is not the
>property of the mother, but through the mother to the child. There
>have been an awful lot of (failed) defenses based on an attempt to
>un-comingle support funds and personal funds.

You mean in battles involving award adjustments? I'm not surprised.
The bias of Family Court is to maximize the support going to the child's
household, whether it's justified or not. I imagine this contract would
be handled by the regular civil courts, however, which ought to be a 
little more sane about enforcing contractual obligations.

>Should be or is now --either case wouldn't stand. At least, that's my
>understanding of what might be expected. In a lot of ways, many people
>would like to see a change in the various systems of family-law. 

This is not inherently a "family law" concern. It's a contractual 
obligation, like buying a house or a car, which just happens to relate to
a family concern. I agree that one cannot expect much justice for men
from our current Family Law establishment. That's exactly WHY I think it
may be productive to approach this from the point of view of a pure
contract. I'm not attached to this approach to the exclusion of all others,
understand, but I think it's an interesting way to tackle the inequity
problem. And I have yet to hear an authoritative reason why such a 
contract would be unenforceable.

							- Kevin
Newsgroups: misc.legal