Marriage Of Bonds

Facts

H and W decided to marry. On February 5, 1988, in Phoenix The day before the marriage, the parties entered into a written premarital agreement in which each party waived any interest in the earnings and acquisitions of the other party during marriage. That same day, they flew to Las Vegas and were married the following day. H's annual salary at the time of the marriage ceremony was approximately $106,000. W had emigrated to Canada from Sweden in 1985, had worked as a waitress and bartender, and had undertaken some training as a cosmetologist, having expressed an interest in embarking upon a career as a makeup artist for celebrity clients. Although her native language was Swedish, she had used both French and English in her employment, education, and personal relationships when she lived in Canada. She was unemployed at the time she entered into the premarital agreement. H petitioned for legal separation on May 27, 1994. W requested custody of the parties' two children, then three and four years of age. The trial was bifurcated, and the validity of the premarital agreement was before the court. At trial, H testified that he informed W he would not marry without a premarital agreement, and she had no objection. W informed H that this was the practice with respect to marital property in Sweden. W's testimony at trial was that her English language skills in 1987 and 1988 were limited. Out of pride, she did not disclose to Barry that she often did not understand him. She testified that she and Barry never discussed money or property during the relationship that preceded their marriage. W was surprised because H never had said that signing the agreement was a precondition to marriage. Forsberg, a native of Sweden and W's friend, was present at the time the agreement was signed. Forsberg had been unable to answer W's questions or explain to W the terminology used in the agreement. She confirmed that W's English was limited, that the lawyers had explained the agreement, and that W never stated that she was considering not signing the agreement, that she did not understand it, or that she was not signing of her own free will. W never said that H threatened her or forced her to sign, that she wanted to consult independent counsel concerning the agreement, or that she felt pressured. She testified that when the attorneys explained the agreement, she did not recall any discussion of W's community property rights. H and his attorney, Brown, recalled that approximately two weeks before the parties signed the formal agreement, they discussed with W the drafting of an agreement to keep earnings and acquisitions separate. Brown testified that he told W at this meeting that he represented H and that it might be in her best interest to obtain independent counsel. W, Megwa, and Brown testified that Wilcox was not present at the February 5, 1988, meeting, which lasted between one and two hours, and that at the meeting the attorneys informed W of her right to independent counsel. All three recalled that W stated she did not want her own counsel, and Megwa recalled explaining that he and Brown did not represent her. All three recalled that the attorneys read the agreement to W paragraph by paragraph and explained it as they went through it, also informing her of a spouse's basic community property rights in earnings and acquisitions and that W would be waiving these rights. The court found that the circumstances of the signing were proper. It found that W was told that she could have separate counsel if she chose. W declined. W was capable of understanding this admonition. The wedding was a small impromptu affair that could have been easily postponed. The court determined that H and W were not in a confidential relationship at the time the agreement was executed. The trial court also declared that pursuant to a pretrial stipulation the burden of proof rested upon W, but that even if the court were to place the burden of proof upon H, H had demonstrated by clear and convincing evidence 'that the agreement and its execution [were] free from the taint of fraud, coercion or undue influence' and that W 'entered the agreement with full knowledge of the property involved and her rights therein.' W appealed. The Court of Appeal reversed and directed a retrial on the issue of voluntariness. The majority stressed that W lacked independent counsel, determined that she had not waived counsel effectively, and concluded that under such circumstances the evidence must be subjected to strict judicial scrutiny to determine whether the agreement was voluntary. H appealed. 

Issues

Rule of Law

Holding and Decision

Legal Analysis

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