Highlights

The July edition of "Family Law Update" discussed the then pending case of Marriage of Pendleton (41 Cal. 4^th, 41)which had been sitting on the California Supreme Court docket. In that Update we promised to provide a follow-up on the outcome of the case once a decision was rendered. The California Supreme Court did issue a decision in that case as well as companion case also involving prenuptial agreements, Marriage of Bonds., 24 Cal. 4^th, 1.

These decisions both expand the scope and enforceability of prenuptial agreements entered into in the State of California. In the Pendleton case, the court determined that a prenuptial agreement which set forth a waiver of the right to obtain spousal support at a point in the future was not "per se" unenforceable. As you may recall from our prior Update, the general legal consensus prior to this time was that a waiver of spousal support was unenforceable in that it was against public policy, and potentially promotive of divorce.

As a result of this decision, a waiver of support may now be contemplated by parties considering such an agreement. Unfortunately, the Pendleton decision did not give carte blanche to waive support in all such agreements. In this particular case, at the time the document was signed the parties were both successful individuals who clearly understood what they were about to do. It is conceivable that there may be future cases where such a waiver is not upheld. Therefore, proper drafting of such an agreement, well in advance of wedding plans, is highly recommended by our office.

The second case, Marriage of Bonds held that a prenuptial agreement is not unenforceable solely because one of the parties is unrepresented by counsel at the time of execution. In this particular case, the former wife of baseball star Barry Bonds challenged the validity of an agreement executed only a few days before the wedding, which agreement she signed without retaining counsel. In determining that the agreement should be upheld the court made note of the fact that the wife appeared unconcerned about the terms of the agreement when presented with it. She was advised of the opportunity to seek counsel if she so desired, and husbands lawyers tried to explain the agreement to her. Wife was from Sweden and English was not her native language. However, the agreement was in keeping with Swedish custom and not offensive to Wife at the time of execution.

Although the court had several facts on which to base the decision to uphold, the court did not limit its holding to situations with similar facts. By the same token, the court also did not set forth whether the holding applies in every case where a party is not represented by counsel. Nonetheless, the overall decision certainly makes it clear that the turning over such an agreement in the future may be difficult, if not impossible. Of course, proper safeguards should still be followed to ensure enforceability.

In the last edition