In re Marriage of Bonds

Supreme Court of California · 2000 · Family Law

Family LawPremarital AgreementsVoluntarinessIndependent Counselpremarital agreementprenuptial agreementFamily Code section 1615voluntariness

Facts

Sun and Barry Bonds signed a written premarital agreement in Phoenix on February 5, 1988, the day before their Las Vegas wedding, providing that each waived any interest in the other's earnings and acquisitions during marriage. Sun was not represented by independent counsel, while Barry was represented by attorneys who, according to Barry's evidence credited by the trial court, had discussed the agreement with Sun in advance, told her they represented Barry, advised her she could obtain separate counsel, explained community property rights and the agreement paragraph by paragraph, and made changes at her request. Sun testified that her English was limited, that she did not understand the agreement, and that she focused on the imminent wedding, but she also testified no one forced her to sign and she did not ask for more time. The trial court found she understood the agreement and signed voluntarily, without fraud, coercion, or undue influence.

Issue

Whether a premarital agreement must be subjected to strict scrutiny for voluntariness when one party was not represented by independent counsel. Also, whether substantial evidence supported the trial court's finding that Sun voluntarily executed this premarital agreement under Family Code section 1615.

Rule

A premarital agreement is unenforceable under Family Code section 1615 if the party resisting enforcement proves the agreement was not executed voluntarily. In determining voluntariness, courts consider the totality of circumstances, including factors such as coercion, surprise, proximity to the wedding, opportunity to consult independent counsel, inequality of bargaining power, disclosure, and the party's understanding of the rights being waived or the agreement's effect; lack of independent counsel is an important but non-dispositive factor and does not trigger strict scrutiny or shift the burden of proof.

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Nina Sorenson and Leo Barrett planned a small courthouse wedding in Santa Fe. Three days before the ceremony, Leo's attorney presented Nina with a premarital agreement waiving any interest in each other's postmarital earnings; the attorney said he represented only Leo, advised Nina to get her own lawyer, and explained the agreement's basic effect, but Nina chose not to do so and later admitted no one threatened her.

In a later dissolution action, Nina argues the agreement is unenforceable solely because she lacked independent counsel when she signed. How should a court rule?

Explanation. The majority held that under Family Code section 1615, absence of independent counsel is an important but non-dispositive factor. It does not trigger strict scrutiny, create a per se invalidity rule, or require a criminal-style waiver of counsel. Voluntariness is determined from the totality of circumstances, and the challenger bears the burden of proving involuntariness.