How do you feel about pre-nuptial agreements? Until I turned forty, I would never have
considered one, for as to me they set the terms for the divorce in place so
when things get tough, why not walk away?
I want there to be some uncertainty attached to divorce.
I would now acknowledge that when the prospective
spouses have significantly different financial situations, a pre-marital
agreement or “pre-nup” may be appropriate.
The validity of these agreements came before the State Supreme Court
late last month in the figure of baseball player extraordinaire, Barry
Bonds. Mr. Bonds’ wife, Suzanne Bonds,
was a twenty-three year old immigrant who had no lawyer to protect her
interests when she received the agreement prepared by Mr. Bonds’ attorneys on
the night of their wedding in Las Vegas.
It is clear that Suzanne Bonds did not understand what was happening, as
both sides acknowledge she told husband Barry that she didn’t need an
attorney because she didn’t own any property.
Should a court make it a legal requirement that if a
pre-nuptual agreement is going to executed, that each side be “forced” to have
legal counsel? The Bonds divorced in
1994. During the time the Bonds were
married, Barry Bonds went from earning $106,000.00 a year all the way to
earning $8,000,000.00 a year. Suzanne
Bonds’ attorneys argue that the agreement should be struck down, as there was
nothing remotely close to parity in bargaining positions between the parties,
the fact that she was handed this agreement literally hours before the wedding,
that she was misled by Bonds’ attorneys about what was in the agreement, that
it would be unreasonable to think that she would postpone her wedding in order
to study the agreement, and, based on the surrounding circumstances, it is not
an agreement she would have understood, had she stared at the paperwork for a
week.
When pre-nuptial agreements are used, I would very
much like both sides to be represented by attorneys. When you sign a pre-nuptial agreement, you potentially give away
so very much. These are civil matters,
however, and courts are not about to appoint attorneys for those who cannot
afford them and are considering signing pre-nups, as they do in criminal cases,
when those who cannot afford counsel are sent to the public defender. There is no pre-nup public defender. When people waive their right to counsel in
this situation, they often end up in court years later, such as in this case,
claiming that they did not understand what was going on.
Rather than legislate a resolution to this issue,
perhaps informing the public at large as to the very very strong necessity for
people to have counsel before signing pre-nuptual agreements is the best way to
go. And perhaps there are attorneys who
would like to specialize and become known as “pre-nup readers” wherein that is
all the attorney does; he reads the pre-nuptual agreement and advises you as to
whether you should sign it, and/or what changes you might want to make. I would think that, as with anything else,
if an attorney were to build a reputation in this area, he could do a high
volume of this work and therefore not have to charge a significant amount of
money. Yes, I would prefer to work on
educating the public rather than legislating regarding this issue.
By the way, I am rooting for Suzanne Bonds in this
one. Yes, I know she didn’t have to
sign it, however, when you are handed the agreement on the way to your wedding
and one side has a locker room full of lawyers and the other side has none and
you clearly did not understand the proceedings, it is not fair. Let Barry share
some of his tremendous earning power with his ex-wife.