The Barry Bonds Divorce Case

By Attorney Gregg Herman
September 20, 2000

There is a cartoon of a man on his knees before a woman, holding a diamond engagement ring. “Before I say ‘yes’,” the woman is saying, “What is the exit strategy?”

The entire concept of prenuptial agreements and the involvement of lawyers is rather quirky.

Lawyers involved in these agreements are retained to represent the (typically) adverse financial interests of their clients, i.e. protection of assets/income versus financial security if career sacrifices are made during marriage.

Meanwhile, their clients purport to be in love with each other and wish to share the most intimate of relationships. This quandary leads many parties to forgo the involvement of lawyers in the negotiation of a prenuptial agreements.

Recently, in Bonds v. Bonds, No. S079760 (Cal. Aug. 21, 2000), the California Supreme Court held that the failure of a spouse to secure independent legal representation during negotiations with the spouse who was promoting entry into a prenuptial agreement does not, per se, invalidate the agreement at the time of divorce.

The case involved the marriage of San Francisco Giants All-Star baseball player Barry Bonds. Bonds was earning $106,000 annually when he married his wife, Sun, who had emigrated from Sweden to Canada. They were both 23 years old.

Sun had worked as a waitress and bartender and had some training as a cosmetologist, all unlikely to lead to income approximating that of a major league baseball player. She was unemployed at the time she signed the agreement. Yet the prenuptial agreement waived any interest in the earnings and acquisitions of the other during the marriage.

The parties were divorced six years and two children later when Bonds’ salary was, well, quite a bit higher than when the prenuptial agreement was signed..

The testimony of the parties at trial was remarkably different. What was uncontested was that Sun had no lawyer and that Barry had two lawyers plus a financial advisor.

The remainder of the circumstances, including the amount of English understood by Sun, the explanations given to her of her right to an attorney and of the substance of the agreement, were greatly disputed by the various witnesses.

The trial court found that the credibility of the witnesses determined the outcome of the case and found that Barry’s’ witnesses were more credible.

The court of appeals reversed, however, and remanded for trial on the issue of voluntariness. The majority of the court of appeals concluded that the trial court did not give proper weight to the fact that Sun did not have independent counsel.

Where a party did not have the advice of counsel, the appellate court held, the trial court should subject the agreement to a higher level of scrutiny.

The California Supreme Court, following a lengthy discussion of the highly disputed facts and of the Uniform Premarital Agreement Act, reversed the court of appeals, reinstating the trial court’s order upholding the agreement.

The supreme court concluded that, while the ability of the party challenging the agreement to obtain independent counsel was a factor in determining the voluntariness of the agreement, failure to have counsel does not permit the trial court to expose the agreement to heightened scrutiny.

The same day Bonds was decided, the California Supreme Court held in Pendleton v. Fireman, No. S8070018 (Cal. Aug. 21, 2000) that a prenuptial agreement which, by its terms, waived maintenance is not per se unenforceable.

While the common law restricted the ability of parties to waive spousal support in prenuptial agreements, the California court noted that 41 jurisdictions have already abandoned these limitations.

The supreme court further noted that the rationale behind the refusal to enforce prenuptial waivers of spousal support is no longer in accord with contemporary attitudes toward marriage.

Previously, it was believed that prenuptial support waivers undermined the permanency of the marital relationship. Today, allowing couples to reorder their property rights to fit their needs and desires, even if it takes into account the possibility of divorce, the court held, does not offend the public policy favoring and protecting marriages.

In addition, the supreme court reasoned that the law has moved from a rule that made lifelong support a condition of the marital contract to one where post-divorce support continues only until a spouse becomes self-supporting.

Wisconsin law has long considered the retention of independent counsel to be only a factor in determining the voluntariness of prenuptial agreements. See Button v. Button, 131 Wis. 2d 84, 388 N.W.2d 546 (1986).

Under Greenwald v. Greenwald, 154 Wis. 2d 767, 454 N.W.2d 34 (Ct. App. 1990), as long as the unrepresented spouse was advised of his or her right to an attorney, the agreement will not be summarily rejected.

On prenuptial support waivers, while Wisconsin courts have never directly considered whether an agreement which waives maintenance on behalf of a spouse violates public policy, the answer is clearly that it does not.

In Gardner v. Gardner, 190 Wis.2d 216, 527 N.W.2d 701 (Ct. App. 1994), the parties waived maintenance in a prenuptial agreement. The wife requested temporary maintenance when the divorce commenced. The court held that the wife’s request for temporary maintenance was frivolous under sec. 802.05 and imposed attorney fee sanctions against her. (However, sec. 767.26(8) provides as a maintenance factor any “mutual agreement made by parties before marriage concerning financial support.”)

By implication, the court found that such a waiver did not violate public policy. At the same time, also without directly addressing the issue, the court implicitly held that waiving spousal was tantamount to waiving even temporary support.

Are these holdings fair? Consider for a moment that criminal defendants have constitutional rights to counsel and to trial by jury, among others. Maintenance is a statutory, not constitutional, creation. If constitutional rights can be waived, it only makes sense that statutory rights can be waived as well.

Similarly, if the right to counsel can be waived by a criminal defendant facing loss of liberty, it only makes sense that the right can be waived when all that is at stake is money.

Further, as the California court noted, times have changed. While many years ago, prenuptial agreements waving support may have violated public policy toward preserving marriages, a different public policy may be advanced today by allowing such waivers.

With cohabitation no longer an aberration in society – according to U.S. government census statistics, unmarried opposite gender cohabitation increased 445% from 1977 to 1997 – allowing such waivers may encourage couples to legalize their relationship, knowing that they can devise an “exit strategy” which can avoid the substantial costs of litigation.

Since “palimony”, or support between non-married cohabitants, does not exist in Wisconsin, refusing to allow waiver of support in a prenuptial agreements may have the effect of discouraging marriage. Since the court can reject an agreement if circumstances have substantially changed since its execution, there is a “backdoor” to protect any person who may be substantially harmed in an individual case.

In general though, in Wisconsin, and now in California, two adult people can order their own affairs, as long as they do so without coercion, without the interference of the state playing the role of “Big Brother”.

While certainly it would be wise for any person entering into a legally binding contract to have the advice of legal counsel, people are allowed in our society to be “unwise” and bear the consequences of their choices.

This article originally appeared in Wisconsin Opinions.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.