The last-minute prenup: what courts do with an agreement signed days before the wedding

A prenup signed in the last days before a wedding is not automatically void. Whether it holds depends on the state. Courts in California and Pennsylvania have both enforced agreements handed over at the last minute. California then changed its law so that the same facts would now start with a presumption against the agreement. Other states take other approaches.

The day of the flight

In the winter of 1988, Barry Bonds was a young outfielder with the Pittsburgh Pirates. His fiancée was Susann Branco, a Swedish emigrant who went by Sun. They planned to marry in Las Vegas. On the day they were to fly there, the couple went to the office of his lawyers, and she was given a premarital agreement. His lawyers were in the room. She had no lawyer of her own.

The key term was short. Whatever either spouse earned during the marriage would belong to that spouse alone. In California, where the couple later made their home, sharing what is earned during the marriage is the center of the default rules, and this clause removed it.

Sun signed. The wedding took place in Las Vegas the following day. At the time he earned about $106,000 a year. Six years on, when they divorced, his contract with the San Francisco Giants was worth $43.75 million. Under California’s default rules, half of what he earned while they were married would have been hers. The agreement gave her none of it.

The litigation lasted years. The trial judge found that she had understood the agreement and signed it voluntarily. The Court of Appeal disagreed, holding that an agreement signed by someone without a lawyer called for much stricter review. In 2000 the California Supreme Court sided with the trial judge and enforced the agreement.

California’s answer

The legislature responded. For agreements signed since 2002, California presumes the signature was involuntary unless two conditions were met. The person now resisting the agreement must have held it for seven days or more before signing. And that person must either have had a lawyer or have given up the right to one in a separate written waiver. An agreement presented on the day of the flight, to someone with no lawyer, would meet neither condition.

Pennsylvania’s answer

Pennsylvania’s leading case points the other way. In Simeone v. Simeone, a 23-year-old nurse was presented with an agreement the night before she married a neurosurgeon. Its support terms were limited to $200 a week and $25,000 in total. In 1990 the Pennsylvania Supreme Court enforced it. The court’s view was that adults are bound by contracts they sign, whether or not they read them, provided there was full financial disclosure.

A third approach

A newer uniform law, the Uniform Premarital and Marital Agreements Act of 2012, focuses on access to a lawyer. North Dakota adopted it in 2013. Under North Dakota’s version, an agreement can’t be enforced against a person who lacked access to independent legal representation, which the statute treats as having a reasonable time to find a lawyer and consider the lawyer’s advice.

One more way an agreement fails

Timing isn’t the only risk. When Frank and Jamie McCourt, then owners of the Los Angeles Dodgers, divorced, their 2004 postnuptial agreement turned out to exist in six signed copies that didn’t match. Three listed the team among his separate property and three excluded it, because a page had been swapped after signing. In 2010 a Los Angeles judge threw the agreement out. Whatever the deadline, every signed copy has to be the same document.

What to do

• If you’re handed an agreement close to the wedding, ask for a week and a lawyer of your own before you sign. That is the standard California now writes into law, and it is a reasonable request anywhere.
• If you’re the one proposing it, start months ahead, disclose everything, and make sure the other person has their own lawyer and time to use them. The Bonds agreement survived, but only after years in court, and California has since changed the rule for later agreements.
• Before anyone signs, compare every page of every copy.

What your state requires varies, so ask a lawyer licensed there before anyone signs.

Sources