Chicago,
This one was pretty tricky, but I finally hit on the idea of searching
Lexis-Nexis for law journals, rather than court cases, and came across
an article that hit the nail on the head.
The article in question appeared in the January 17, 2000 edition of
the Chicago Daily Law Bulletin:
-----
Lovers need counsel before signing premarital accords
by H. Joesph Gitlin
-----
The article discusses the implications of the highly-publicized
divorce proceedings of baseball superstar, Barry Bonds, from his
(then) wife, Sun.
In crafting the prenuptial agreement, Bonds was represented by his
lawyer, while Sun signed the agreement without benefit of counsel.
The California Court of Appeals found that -- in such cases -- the
lawyer for the represented party has certain obligations to the
unrepresented party:
==========
"...the California Court of Appeal held that when an unrepresented
party seeks to enter into a premarital agreement, the attorney for the
represented party must explain four major points to the unrepresented
party:
- The attorney's responsibility is to pursue and protect only the
interests of his or her client.
- Spousal interests are likely to conflict.
- The spouses' interests will change over time, and the attorney will
not be concerned with providing for all the contingencies that could
affect the unrepresented spouse.
- Signing the agreement will eliminate or modify the unrepresented
party's statutory rights..."
==========
The Appeals Court also considered the importance of representation
under provisions of the Uniform Premarital Agreement Act (as it exists
in California):
==========
"The appellate court also found that the trial court failed to give
proper weight to Sun's not being represented by independent counsel,
while Barry had two attorneys and his financial adviser present to
consult him. The court further ruled that trial courts should
carefully scrutinize" agreements when the party challenging the
agreement did not have legal representation.
In reaching its conclusion, the appellate court examined relevant
California case law and legislation, plus case law from other
jurisdictions. The appellate court determined that the standard of
review in many jurisdictions is closely scrutinizing the circumstances
surrounding the execution of the agreement when only one party is
represented. The court also noted that the comment to section 6 of the
Uniform Premarital Agreement Act, pertaining to the absence of legal
counsel, makes it clear that the absence of counsel can be considered
when determining whether to enforce an agreement."
===========
I cannot quote more from the article due to copyright restrictions.
However, your local librarian should be able to assist you in
obtaining the full copy of the article.
The Bonds case in California Appeals Court can be read in its entirety at:
http://caselaw.lp.findlaw.com/data2/californiastatecases/a075328.pdf
[Note from pafalafa-ga: The Bonds were married in 1988. California
adopted the Uniform Premarital Agreement Act in 1986.
See: http://caselaw.lp.findlaw.com/cacodes/fam/1600-1601.html ]
==========
BUT WAIT, THERE'S MORE!!!!
The appelate court decision was not the last word on this issue in California.
Like many things in the legal system, it's hard to tell just when a
particular issue ends.
Sun Bond appealed the case all the way to the California Supreme
Court, which substantially overturned the Appellate Court's ruling!
The Supreme Court's ruling is here:
http://www.scu.edu/law/FacWebPage/Neustadter/e-books/abridged/main/cases/BarryBonds.htm
In re Marriage of Bonds
24 Cal. 4th 1 (Cal. 2000)
and, in essence, says that -- while representation by a lawyer is a
legitimate factor to consider -- it is just one of several factors,
and the Appelate Court went overboard in how much weight they gave it.
In the Bonds case, the Supreme Court did not feel that Sun's lack of
representation should negate the agreement.
End of story, right...? Well, it may have ended the story for Barry
and Sun Bonds, but not for this issue in California. The legislature
stepped in to amend the state's premarital agreements law. The
amendments are summarized in an editorial note at the end of the
Supreme Court case cited above, and says:
==========
In 2001, in response to the decision, the California Legislature
amended section 1615 of the Family Code. The amendment added the
following language:
(c) For the purposes of subdivision (a), it shall be deemed that a
premarital agreement was not executed voluntarily unless the court
finds in writing or on the record all of the following:
(1) The party against whom enforcement is sought was represented by
independent legal counsel at the time of signing the agreement or,
after being advised to seek independent legal counsel, expressly
waived, in a separate writing, representation by independent legal
counsel.
(2) The party against whom enforcement is sought had not less than
seven calendar days between the time that party was first presented
with the agreement and advised to seek independent legal counsel and
the time the agreement was signed.
(3) The party against whom enforcement is sought, if unrepresented by
legal counsel, was fully informed of the terms and basic effect of the
agreement as well as the rights and obligations he or she was giving
up by signing the agreement, and was proficient in the language in
which the explanation of the party's rights was conducted and in which
the agreement was written. The explanation of the rights and
obligations relinquished shall be memorialized in writing and
delivered to the party prior to signing the agreement. The
unrepresented party shall, on or before the signing of the premarital
agreement, execute a document declaring that he or she received the
information required by this paragraph and indicating who provided
that information.
(4) The agreement and the writings executed pursuant to paragraphs (1)
and (3) were not executed under duress, fraud, or undue influence, and
the parties did not lack capacity to enter into the agreement.
(5) Any other factors the court deems relevant.
==========
I'm sure this information does as much to confuse as it does to
clarify the situation, but I do believe it's the most relevant
information you're likely to find.
Hope it helps. Let me know if there's anything else you need by way
of explanation or clarification.
Best of luck to you,
pafalafa-ga |
Clarification of Answer by
pafalafa-ga
on
06 Jun 2004 10:37 PDT
Probably the best source of additional information on this topic would
be the definitive reference work:
http://www.gitlin.com/godbook.htm
Gitlin on Divorce: A Guide to Illinois Matrimonial Law
Third Edition
{written by the same person who wrote the article I referenced).
This book is probably available at an Illinois law library, if you
have access to one. Chapter 9 deals with premarital agreements.
As for cases where neither side was represented -- I haven't found
any. The Bonds case seems to be the only realy relevant and
reasonably current case out there, as far as I can see. (Not all
cases make it into legal databases, but if a case like what you're
looking for had occured, and had then been appealed, it would probably
show up. Like I said, though, I don't see any).
You've asked about "enforceability", but that's a question that can't
really be answered until there is established case law -- the
agreements are challenged in court, and a ruling is created that lays
out what's enforceable and under what circumstances. Even then, the
ruling could be overturned by a higher court. No doubt, that's one of
the reasons why the firms selling do-it-yourself agreements won't
anwer any questions about enforceability.
Wish I could provide more definitive information...but at least I
haven't offered any advice.
Best of luck....
paf
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