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Q: Court cases relating to Pre-Nuptial Agreement Without Lawyers ( Answered 5 out of 5 stars,   1 Comment )
Subject: Court cases relating to Pre-Nuptial Agreement Without Lawyers
Category: Relationships and Society > Law
Asked by: chicago1040-ga
List Price: $25.00
Posted: 05 Jun 2004 09:54 PDT
Expires: 05 Jul 2004 09:54 PDT
Question ID: 356785
Please supply links and references to actual Illinois court cases
involving the enforceability of pre-nuptial agreements that were
drafted and executed without legal counsel.


References which would require me to go to a library or
other physical place to read it are acceptable in lieu
of web links, as long as you include the specifics of
where to find it.

Request for Question Clarification by pafalafa-ga on 05 Jun 2004 12:52 PDT
Hello chicago,

I took a look at Lexis-Nexis court cases in Illinois, and identified
about 50 cases that show up having to do with pre-nup agreements. 
Surprisingly, many of the cases go back many decades, even though I
tend to think of pre-nups as a relatively recent phenomenon.

There is no straightforward way that I know of to sort through these
cases to see which ones (if any) have to do with agreements drawn up
without a lawyer.  It's largely a matter of reading through the cases
to see what they are about, and I'm afraid this is a considerably
larger task that I can justify for the list price of your question.

Perhaps another researcher will be able to assist you.  But I thought
I'd mention my efforts thus far, in the event that you have some
suggestions as to how we might proceed.

Best of luck,


Clarification of Question by chicago1040-ga on 05 Jun 2004 13:22 PDT
Cases older than 1991 are no good because that's when
the Uniform Premarital Agreement Act was enacted. 
If you look at only recent cases, how many would you
have to sift through then?

Request for Question Clarification by pafalafa-ga on 05 Jun 2004 13:39 PDT
I found ten cases between 1991-2001 (none more recent) regarding prenups.  

At least two of them deal with "oral prenuptial" agreements, which
presumably were made without a lawyer's help (though this is not
specified).  Although the cases are all dated 1991 or later, they
often deal with agreements made well before that date.

Let me know if/how you would like me to proceed.

Clarification of Question by chicago1040-ga on 05 Jun 2004 14:04 PDT
Hmmm... Good point, the agreement itself would have to be 
from after 1991. Is it possible that there just aren't any
cases?? Did you try some simple compound keyword searches
like "without counsel" or "without a lawyer" or "no lawyer"
to see if anything comes up? 


Clarification of Question by chicago1040-ga on 05 Jun 2004 14:31 PDT
Ok, let me try to make this easier.
Please expand your search beyond Illinois,
to include the following, but limit your
search to the last 9 years:

States That Have Adopted the Uniform Premarital Agreement Act:  
District of Columbia
New Jersey
New Mexico
North Carolina
North Dakota
Rhode Island
South Dakota

Request for Question Clarification by pafalafa-ga on 05 Jun 2004 15:40 PDT
OK...I did find *one* relevant piece of information, and it comes
pretty close to confirming that there isn't very much Illinois case
law on this topic.

The information is an article in an Illinois law journal, that reads, in part:

"A recent California appellate court opinion addressed the subject of
an unrepresented party to a premarital agreement...This opinion is
significant to Illinois practitioners because California divorce law
(with its provisions for no-fault and community and marital property)
drifts east to Illinois. The California opinion is also significant
because there is not much Illinois law interpreting the relatively new
(1990) Uniform Premarital Agreement Act..."


I can provide you the full citations to the article -- and the case it
refers to -- and I can summarize the article for you.  I can also
provide a link to the full California case.

However, I cannot provide the full text of the article, since it
protected by copyright.  However, any librarian should be able to
obtain a copy for you.

Would that suffice as an answer to your question>

Let me know.


Clarification of Question by chicago1040-ga on 05 Jun 2004 17:29 PDT
Yes! Thank you.
Subject: Re: Court cases relating to Pre-Nuptial Agreement Without Lawyers
Answered By: pafalafa-ga on 05 Jun 2004 19:44 PDT
Rated:5 out of 5 stars

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

- 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:

[Note from pafalafa-ga:  The Bonds were married in 1988.  California
adopted the Uniform Premarital Agreement Act in 1986.
See: ]



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:

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

(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, 


Request for Answer Clarification by chicago1040-ga on 05 Jun 2004 21:58 PDT
Thanks, pafalafa for the great info. Your answer deserves a 5-star
rating already, but I was wondering if you might be able to find any
info on cases where neither party had representation? There are
"self-help" legal books off-the-shelf that come with boilerplate
premarital agreement forms. I am wondering whether these forms have
ever been tested in court. There are also new online services like (founded by Robert Shapiro) which peddle "lawyer-free"
premarital agreements but they are very dodgy when you ask them about
enforceability (when I e-mailed their customer service asking if
their product is enforceable, they answered that they cannot give
legal advice!).

Anyway, if you do find additional info, please stick to the facts and
and refrain from giving advice, exactly as you've done so far :-)

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:
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....

chicago1040-ga rated this answer:5 out of 5 stars

Subject: Re: Court cases relating to Pre-Nuptial Agreement Without Lawyers
From: expertlaw-ga on 07 Jun 2004 13:28 PDT
The typical path to publication for a case involves a matter that is
in litigation at the trial level, where one or both parties are
unhappy with a ruling or verdict from the trial court. An appeal is
then filed, and if the Court of Appeals deems the decision to have a
significant impact on existing law it may be published. Depending upon
the state, it may be difficult to find unpublished cases without using
a commercial service such as Lexis. Unpublished cases may be
persuasive in future litigation, but to the best of my knowledge every
state holds that unpublished cases are not binding as precedent.

With regard to a prenuptial agreement, if the parties believe counsel
is too expensive to consult while preparing the agreement, it is less
likely that the estate is so large as to merit both litigation of the
validity of the prenuptial agreement *and* an appeal from the trial
court's decision. Further, as where no attorneys are used the typical
trial-level question relating to the use of attorneys - an imbalance
of negotiating power where one party is represented and the other is
not - will ordinarily be absent and thus won't be an issue on appeal.
Besides, if the prenuptial agreement fulfills the statutory
requirements and the parties were in relatively equal negotiating
positions, why would the court be particularly concerned if the
agreement was drafted by the parties or by an attorney?

That's a long-winded way of saying, this is not the type of issue
where I would ordinarily expect to find any significant amount of case
law, and would anticipate that there are no relevant published
precedents in most states.

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