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.