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Does this Agreement Create Reciprocal Promises Leading To Impossibility of Performances?

San Diego, CA |

A Marital Settlement Agreement, (MSA), is erroneously drafted by a layman Wife (W). The clause in question, Paragraph V, reads: “A current life insurance with IOF Foresters C, Universal Life Policy in the amount of $50,000.00 naming the parties as beneficiaries shall remain in force. Husband shall continue to pay premiums on policy. Error: The policy(s) in question only names the W as beneficiary to the husband’s (H) policy and there is no companion policy where the W names H as her beneficiary. H DIES.
Q.1: Does this MSA clause create ‘reciprocal obligations’ leading to Impossibility of performances, (H can name and Pay W as beneficiary,. But W can’t name and Pay H as her beneficiary) Q.2: Can the party that is damaged void the entire clause in question, & thus change beneficiarie

Attorney Answers 3

Posted

Erronious is your key word. We cannot help with the law school inquiries. At least melt it down a bit.

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Posted

1. That is unlikely. The Court can likely correct the error in the MSA (really, the Judgment, which would be the operative instrument, because the clear intention was for the wife to be the beneficiary - that was the "current" life insurance policy that existed. 2. Is the "damaged" party the wife who drew the MSA containing the agreement? Is she damaged (and if so, what is her damage?), or is this merely a hypothetical?

Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship.

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Posted

Assuming there is only the one policy, then most likely no. The court should wind up requiring H to pay premiums with W as beneficiary (probably supporting the idea that W is still receiving spousal support and/or child support).

Orange County Family Law Attorney: (949) 218-0574 - This response provides general information, and is not intended to be legal advice. Getting information from Avvo, or any site, is not a substitute for advice from a qualified attorney who considers all of the facts and circumstances. Nothing here creates an attorney-client relationship. You should consult with an attorney in person and reach an agreement on representation. This response is not intended to be an advertisement or solicitation of services in any jurisdiction where it does not fully comply with all applicable laws or rules.

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