State High Court Rulings Bolster Prenuptial Pacts

In two decisions that strongly reaffirmed the use of prenuptial agreements, the California Supreme Court on Monday said the pacts can be enforced even if only one of the parties had a lawyer during the signing and even if the pact waived spousal support.

The court unanimously upheld the premarital contract between San Francisco Giants slugger Barry Bonds and his ex-wife, the former Sun Branco.

The baseball player had two lawyers and a financial advisor during signing. Branco, a Swedish immigrant, had only a friend from Sweden and said she had been told that the wedding the next day would be canceled unless she signed the agreement, which sharply limited how much money she could obtain if the two divorced.

In a separate 6-1 ruling, the court also said there is no public policy against prenuptial agreements that waive alimony in a divorce. Previously, most family law attorneys believed such waivers would be unenforceable.

Some people may even have agreed to these waivers in premarital contracts only because their lawyers told them they would never stand up in court, one attorney noted.

The two decisions sent a message to lower courts that premarital contracts cannot be set aside lightly. The rulings probably will lead to even more such contracts in California, lawyers said.

Already, tens of thousands of couples in California have prenuptial agreements, and the number has been steadily growing, according to lawyers. Once primarily sought by older, previously married men who were marrying younger women, the pacts are now becoming more common even in first marriages.

“The courts are going to take a practical look at how these things work and let people make contracts they think are appropriate to their lives when they get married,” said Ventura lawyer Wendy C. Lascher, who represented one of the litigants before the high court.

People getting married “are adults, and they can enter into agreements without the necessity of having a lawyer,” said Barry Bonds’ lawyer, Robert Nachshin.

But others say the court rulings will produce more inequities in divorces. Paige Wickland, a lawyer for Sun Bonds, complained that Monday’s decisions will create a “two-tier system of marriage in California,” with the wealthy party benefiting.

“I don’t think it should be that easy to waive your rights,” she said. “You should have more protections.”

Last year, a Court of Appeal ruled that the Bonds agreement must be strictly scrutinized by a court because only Barry Bonds had a lawyer during the signing. That decision jeopardized thousands of prenuptial pacts in California in which only one of the parties was represented by legal counsel.

But the Supreme Court, in a unanimous decision by Chief Justice Ronald M. George, said the fact that only one party had a lawyer should not be the key factor in analyzing prenuptial agreements.

“Obviously, the best assurance of enforceability is independent representation for both parties,” George wrote. But even if only one party had a lawyer, a pact should be enforced as long as both parties entered it voluntarily, he wrote.

In determining whether an agreement is voluntary, the justices held, courts should consider a variety of factors, including whether there is any evidence of duress or fraud.

Bonds and Branco signed the agreement in 1988 on their way to the airport to catch a plane for Las Vegas. Former Giants star Willie Mays, Bonds’ godfather, was there booking rooms for the next day’s wedding celebration.

Sun Bonds had argued that she was unaware of her rights when she relinquished any claim to community property. Barry Bonds was earning $106,000 a year at the time. When the couple split up, six years later, he was making $8 million annually, and the prenuptial agreement prevented Sun Bonds from laying claim to it.

Sun Bonds received $10,000 a month in spousal support until 1998. She still receives $10,000 a month in child support for each of the couple’s two children.

The case must now go back to lower courts to determine whether Sun Bonds should receive more spousal support and a share in houses that Barry Bonds bought under both their names during the marriage.

In ruling for the Giants outfielder, the state high court noted that Sun Bonds had been told of the prenuptial agreement a week earlier, had not expressed reluctance to sign it, and had appeared happy, relaxed and confident during the signing.

George also described the wedding as “impromptu.” The couple did not yet have a marriage license, and only a few family members and close friends had been invited. “Guests were not arriving from Sweden,” George pointed out.

Given those circumstances, “the coercive force of the normal desire to avoid social embarrassment or humiliation (by canceling a wedding) was diminished or absent,” George wrote for the court in Marriage of Bonds, SO79760.

Under that standard, “it is going to be hard to find one that is not voluntary,” said Ronald Anteau, a Beverly Hills family law lawyer.

“You are going to have to have a couple on their way to the church, the wife seven months pregnant, 300 people waiting at the church, a religious family, and on the way the husband, who is a lawyer, pulls over and hands the woman from the glove box a prenuptial agreement and says, ‘If you don’t sign it, there is not going to be a wedding,’ ” he said.

Anteau represented Candace Pendelton in the other case decided by the court Monday. Pendelton and Barry I. Fireman both waived spousal support in a prenuptial agreement signed before they married in 1991. Both had lawyers at the time.

The couple divorced in 1996, and Pendelton sought alimony. A trial court said spousal support could not be waived in California and ordered her former husband to pay her $8,500 a month.

A Court of Appeal later ruled that waivers were not automatically invalid. The California Supreme Court agreed in Marriage of Pendelton and Fireman, SO70018.

“No public policy is violated by permitting enforcement of a waiver of spousal support executed by intelligent, well-educated persons, each of whom have the advice of counsel regarding their rights and obligations,” Justice Marvin R. Baxter wrote for the court.

Justice Joyce L. Kennard dissented, contending that the Legislature had decided not to permit waivers of alimony. “An agreement equitable at the time of the marriage may later become inequitable and unjust,” Kennard wrote.

The earning ability of a spouse may change drastically during a marriage because of children, a move to a new location or health problems, she noted.

A waiver of alimony can still be challenged as “unjust,” Baxter wrote. But Anteau said the court ruling failed to establish guidelines to clarify exactly what that means.

Previously, many lawyers advised clients that they did not have to be concerned about alimony waivers because courts would never enforce them.

“Now almost every prenup out there is going to end up in a legal malpractice lawsuit,” Anteau said.