Family and friends watching the 1988 marriage of Barry and Sun Bonds probably had a few clues it wouldn't last. The day before they flew to Vegas to tie the knot, the ballplayer took his bride-to-be to an attorney so that she could sign a prenuptial agreement that stated she wouldn't have any claim on his earnings and assets during their marriage.
Bonds later told a California court that Sun agreed because, as she said at the time, "What's mine is mine, what's yours is yours." Ah, youth. They were 23 and clear ly clueless about what marriage is about. To wit: Sharing.
Last week, the California Supreme Court ruled that the prenup was valid. It overturned an earlier decision that ruled that Sun Bonds had no attorney when she agreed to the prenup and may not have understood what she was signing away.
Said Barry's lawyer Richard Sherman, "I think the Supreme Court correctly inter preted the law and correctly applied it to these facts. There was abundant evidence that Sun Bonds knew her rights and voluntarily signed her agreement."
On the same day, the court upheld a prenuptial agreement signed by a Malibu couple in which both spouses waived their right to spousal support. When they split up, the wife changed her mind.
Figure that the court was right in both cases in terms of the law. One call still ask: Is the law an ass?
More to the point: Could prenuptial agreements create two tiers of marriage ... one in which both spouses are considered equal partners, the other in which a rich spouse has been able to pressure a portfolio-impaired girlfriend into signing away her due. The higher tier enjoys community property, the lower-tier spouse knows she could be out on the street without a dime if the marriage goes south.
Defenders of prenuptial agreements point out that a contract is a contract; adults are free to sign, or refuse to sign. Retired Justice Donald King, a family law expert, put it this way: "Are people free to contract in terms of what their rights are?" He believes that betrothed persons should be able to contract as freely as business people.
In some circumstances, prenuptial agreements can be a positive force. Maybe a wife wants to protect her business, or a man wants to make sure children from an earlier marriage inherit certain property.
But there is an unsettling side to these contracts. As Sun Bonds' attorney Paige Wickland noted, "You are essentially being asked to litigate divorce as you're about to get married."
What's more, these contracts can undermine the very notion of community property, which is at the heart of marital law in California. "The fact is, the community property system is a pretty enlightened system," Wickland added, based upon the "premise that each party makes an equal contribution to a marriage. It's a partner ship. That's true whether you work outside the home or inside the home."
But it's not true when a monied man tells the woman who loves him that he'll only say "I do," if she says "I don't" to their joint assets. Sign here on the dotted line.
Yes, Sun Bonds was free to say no, but she didn't. And if too many lovestruck men and women agree to these uneven contracts, the very notion of community property could be threatened.
Meanwhile, the rich spouse would enjoy all the benefits of marriage ... joint medical coverage, hospital visitation, inheritance rights and his spouse couldn't be compelled to testify against him ... without bearing the customary obligations. What a sweet deal. It's like getting free milk without having to care for the cow.
The state Legislature may want to take a look at state law to find ways to protect the lovesick from striking bad bargains. California might require that both parties have their own lawyer or the prenup is invalid. (Since not all lawyers are ethical lions, this wouldn't protect all betrotheds, but some.) Lawmakers also might want to require that a prenup must be signed, say, one month before a wedding in order to be valid. Perhaps the state could set a minimum percentage of property that would have to be shared.
In cases like the Bonds case, Wickland noted, "You have a marriage, but no marital obligations, then what is marriage?" The answer: It's a sweet deal that gives the rich person all the meat, and the have-not, the gristle. This can't be good for California kids or California families.