See, e. g., Oliphant v. Oliphant, 177 Ark. 613, 7 S.W.2d 783 (1928). In Arkansas, a premarital agreement is valid if it was freely entered into, and is free from fraud and not inequitable. Arnold v. Arnold, 261 Ark. 734, 553 S.W.2d 251 (1977); Gooch v. Gooch, 10 Ark. App. 432, 664 S.W.2d 900 (1984). Parties contemplating marriage may, by agreement, fix the rights of each in the property of the other differently than established by law.
Indeed, it is commonplace for chancellors to distribute property which is located outside of their counties or judicial districts. Cf. Champion v. Champion, 238 Ark. 87, 378 S.W.2d 648 (1964) (chancery court in Arkansas County ordered sale of properties in Arkansas and Monroe counties); Gooch v. Gooch, 10 Ark. App. 432, 664 S.W.2d 900 (1984) (chancery court in Clark County ruled that neither party was to have an interest in property the other owned before marriage, including appellee's lake house in Garland County). [4, 5] The Arnolds correctly point out that we have stated, as a general matter, that a chancellor has no authority to decide the validity of an obligation to a third party who is not a party to the divorce.
Our sister states have found such treatment too short a shrift for so fundamental a unit of society.See Marschall v. Marschall, 195 N.J. Super. 16, 477 A.2d 833 (1984); Newman v. Newman, 653 P.2d 728 (Col.Sup.Ct. 1982); Osborne v. Osborne, 384 Mass. 591, 428 N.E.2d 810 (1981); Scherer v. Scherer, 249 Ga. 635, 292 S.E.2d 662 (1982); Gooch v. Gooch, 10 Ark. App. 432, 664 S.W.2d 900 (1984). Thus, I believe that the door should remain open for a spouse to avoid the application of a pre-nuptial agreement where clear and convincing proof establishes that the result will be inequity and unfairness under the circumstances of the particular case and the public policy of this state.
See , e.g. , Oliphant v. Oliphant , 177 Ark. 613, 7 S.W.2d 783 (1928). In Arkansas, a premarital agreement is valid if it was freely entered into and is free from fraud and not inequitable. Arnold v. Arnold , 261 Ark. 734, 553 S.W.2d 251 (1977) ; Gooch v. Gooch , 10 Ark. App. 432, 664 S.W.2d 900 (1984). Parties contemplating marriage may, by agreement, fix the rights of each in the property of the other differently than established by law.
This court has upheld a premarital agreement where a husband made a generalized disclosure of his assets but did not specify the precise sources and amounts of his income. See Gooch v. Gooch , 10 Ark. App. 432, 664 S.W.2d 900 (1984). Exhibits A and B constitute a fair and reasonable disclosure of Jimmy's assets.
Such agreements must be made in contemplation of the marriage lasting until death, rather than in contemplation of divorce. Oliphant v. Oliphant, 177 Ark. 613, 7 S.W.2d 783 (1928); Gooch v. Gooch, 10 Ark. App. 432, 664 S.W.2d 900 (1984). However, an agreement that is not solely intended to be operative upon divorce is not void merely because it mentions or is operative upon divorce among other contingencies. Dingledine v. Dingledine, 258 Ark. 204, 523 S.W.2d 189 (1975); Babb v. Babb, 270 Ark. 289, 604 S.W.2d 574 (Ark.App. 1980).
Pennybaker v. Pennybaker, 14 Ark. App. 251, 687 S.W.2d 524 (1985). We review the testimony in the light most favorable to the appellee, and indulge all reasonable inferences in favor of the decree, Gooch v. Gooch, 10 Ark. App. 432, 664 S.W.2d 900 (1984), and we give due regard to the chancellor's superior opportunity to assess the credibility of the witnesses. Cox v. Cox, 17 Ark. App. 93, 704 S.W.2d 171 (1986).
We review the testimony in the light most favorable to the appellee, and indulge all reasonable inferences in favor of the decree. Gooch v. Gooch, 10 Ark. App. 432, 664 S.W.2d 900 (1984). In the case at bar the record contains testimony by the appellant which, if believed, would tend to show that he consented to give the appellee a larger share of the marital property in exchange for her agreement that he would not be required to pay child support.
[5, 6] It is well settled that in order to effect a change of domicile from one place or state to another, there must be an actual abandonment of the first domicile, coupled with the intention not to return to it and there must also be a new domicile acquired by actual residence in another place or jurisdiction, coupled with the intent of making the last acquired residence a permanent home. Phillips v. Sherrod Estate, 248 Ark. 605, 453 S.W.2d 60 (1970); Gooch v. Gooch, 10 Ark. App. 432, 664 S.W.2d 900 (1984). This rule has also been adopted by the courts of Kansas. Perry v. Perry, supra.
Among the factors looked at to determine whether a person has requisite intent to establish a domicile in a particular place are declarations of the parties, exercise of political rights, payment of personal taxes, a house of residence and a place of business. Gooch v. Gooch, 10 Ark. App. 432, 664 S.W.2d 900 (1984). These factors must be evaluated in an attempt to determine a candidate's intent as to domicile.