Latest Case: In re Marriage of Zander (Contracts)

The Upside-Down Treatment of Religious Exceptions Cases in the Supreme Court

MICHAEL C. DORF

Cornell law professor Michael C. Dorf comments on the U.S. Supreme Court’s decision last week to reject an emergency application from the State of Alabama to lift a stay on the execution of Willie B. Smith III. Professor Dorf observes the Court’s unusual alignment of votes in the decision and argues that, particularly as reflected by the recent COVID-19 decisions, the liberal and conservative Justices have essentially swapped places from the seminal 1990 case Employment Division v. Smith, which established that the First Amendment does not guarantee a right to exceptions from neutral laws of general applicability.

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In re Marriage of Zander

Citation: 2021 CO 12

Opinion Date: February 16, 2021

Judge: Samour

Areas of Law: Contracts, Family Law

The petitioner in this appeal was attempting to enforce an oral agreement she entered into with her husband to exclude the couple’s retirement accounts and inheritances from being considered “marital property,” which was subject to equitable division in a dissolution proceeding. The district court found that an agreement existed, and that ruling wasn’t appealed. The issue this appeal presented for the Colorado Supreme Court's review was whether the agreement was valid despite being oral, and, alternatively, whether the parties’ partial performance could otherwise render the oral agreement valid. There were four statutory exceptions to the rule that property acquired during a marriage was generally considered "marital property." The only exception implicated here was property excluded from the marital estate by a "valid agreement" of the parties. Specifically, the issue was whether the parties' agreement to exclude their retirement accounts and inheritances from the marital estate had to be in writing and signed in order to be a "valid agreement." The Supreme Court held the parties' 2007 oral agreement was not a valid agreement because, at the time, Colorado statutory law required that all agreements between spouses be in writing and signed by both parties. Furthermore, the Court held the court of appeals correctly determined the parties’ conduct after entering into the oral agreement could not be treated as partial performance that satisfied the writing and signature requirements. Accordingly, the court of appeals’ judgment was affirmed and the case remanded with instructions to return the case to the district court for further proceedings.