Cannon v. Cannon
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Cann on v. C annon , No. 48, Sept. Term 2004. Opinion by Harrell, J. FAMILY LAW - DIVORCE - EVALUATING VALIDITY OF ANTENUPTIAL AGREEMENTS - CONFIDENTIAL RELATIONSHIP AS MATTER OF LAW A confidential relationship exists as a matter of law between the parties to an antenuptial agreement where marriage is the consideration for the agreem ent. Becau se of this confidential relationship, the burden of proof to establish the validity of the antenuptial agreement in litigation wh ere the agre ement is at issue lies upon the party seeking to enforce the agreement. A party seeking to enforce an antenuptial agreement ultimately must prove that an overreaching d id not occur, such that there was no unfairness or inequity to the other party at the time the agreeme nt was en tered. T he agreem ent in the pre sent case w as valid because the wife had adequate pre-disclosure and knowle dge of the financial an d property items at issue, knew the effect of her waiver(s), and entered voluntarily the agreeme nt, although without the advice of legal counsel. Thus, execution of the agreement was not an exercise in overreaching. Circuit Co urt for Frede rick Coun ty Case # 10-C-02-001642 DA IN THE COURT OF APPEALS OF MARYLAND No. 48 September Term, 2004 WENDY J. CANNON v. JOHN A. CANNON Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Filed: January 12, 2005 We issued a writ of certiorari in this case to re-examine the proper analysis of challenges to antenuptial agreements in Maryland law and the role, if any, in that analysis of an asserted confidential relationship between the parties to such agreements. As to the latter, we maintain tha t a confidential relationship exists, as a matter of law, between the parties at the formation of the antenuptial agreement, consistent with Levy v. Sherman, 185 Md. 63, 43 A.2d 25 (1945 ), Hartz v. H artz, 248 Md. 47, 234 A.2d 865 (1967), and Frey v. Frey, 298 Md. 552, 471 A.2d 705 (19 84). The present case began in 1992 when Wendy Santilhano (hereinafter referred to as Mrs. Cannon) and John Cannon became engaged to be married. The parties thereafter signed, and had notarized, an antenuptial agreement (the Agreement) prior to the wedding. The Agreement stated that each would retain sole title to any property acq uired in their individual capacities prior to the marriage (includ ing Mr. C annon s h ome), rem ain solely liable for any debt individually incurred prior to and during the m arriage, and mutually waived alimony and marital property rights. The parties married on 25 June 1994. In 2001, the parties separated. Mrs. Cannon, and her children from a previous marriage, moved out of Mr. Cannon s home. Mrs. Cannon filed for an absolute div orce in the Circuit Court for Frederick County in July of 2002, alleging, among other things, that the Agreement was invalid and that she was entitled to alimony and an equitable share of the marital property. After a hearing, the Circuit Court concluded, as explained in an oral opinion rendered on 26 March 2003, that the Agreement was invalid. A critical factor in the trial court s reasoning was its finding that the parties expressed an oral intent to enter the antenuptial agreement principally to protect Mr. Cannon s assets and finances from undefined spillover consequences flowing from a bankruptcy proceeding initiated by Mrs. Cannon prior to their marriage. The trial court apparently was of the mind that the existence of a confide ntial relationship between the parties justified Mrs. Canno n s reliance o n this intent in entering the Agreem ent, but did not serve as a perm anent waiver of h er asserted marital rights. The Agreem ent, accordin g to the trial judg e, was bu t a tempora ry measure to protect Mr. Cannon from her creditors a threat that allegedly abated no later than 1996. Acc ordingly, the Circuit Court concluded that the Agreement ceased to be valid and enforcea ble after that time, even though its terms were silent as to the duration of the Agreem ent or the pe rceived ora l intent. Mr. Cannon appealed this interlocutory decision to the Court of Special Appeals.1 In Cannon v. Cannon, 156 Md. App. 387, 846 A.2d 1127 (2004), the in termediate a ppellate court reversed th e trial court, hold ing that the alle ged oral inte nt had bee n weighed too heavily in evalu ating the purpo rted un fairnes s of the antenu ptial agr eemen t. Employing factors from Hartz, where we outlined the appropriate analysis for challenges to the validity of antenuptial agreements, the Court of Special Appeals declared the antenuptial agreement valid and rema nded the m atter for furth er proceed ings. Mrs. C annon file d a petition for a 1 Both parties assert, and we agree, that an appeal of the Circuit Court s interlocutory ruling on the validity of the Agree ment is a uthoriz ed. While not a final judgment under § 12301 of the Courts and Judicial Proceedings Article of the Maryland Code, appellate court jurisdiction is appropria te for the inter locu tory appeal of an order for the payme nt of mon ey. Mrs. Cannon was awarded pendente lite alimony as a consequence of the invalidation of the Agreem ent. See Md. Code (1973, 2002 Repl. Vol.), § 12-303(v) of the Courts and Judicial Proceed ings Article; Frey v. Frey, 298 M d. 552, 5 56-57 , 471 A .2d 705 , 707 (1 984). 2 writ of certiorari w ith this Cour t, which we gra nted. Cannon v. Cannon, 382 Md. 346, 855 A.2d 349 (20 04). Mrs. Cannon raises two issues for our consideration, which we reorder and rephrase as follows: I. Whether the Court of Special Appeals and the Circuit Court erred in holding that the existence of a confidential relationship between the parties to an antenuptial agreement was a matter of fact to be determined on a case-by-case basis, rather than presumed to exist in every such case as a matter of law. II. Whether the Court of Special Appeals misapplied the clearly erroneous standard in declaring the Agreement valid under the factors discussed in Hartz and Frey. We shall affirm the judgment of the Court of Special Appeals, but on different grounds than those employed by that Court. In so doing, we shall restate the Maryland standard for evaluating antenuptial agreements and the role of the c onfidentia l relationship that exists between both parties, as a matter of law, to such agreements. I. A. Mrs. Cann on me t Mr. Cannon in 1977 at a wedding she attended with her first husband. An intimate romantic relationship between the Cannons commenced in 1986. While waiting for entry of an absolute divorce ending her first marriage (which eventually occurred in Octobe r 1990 af ter a separatio n agreem ent was c onsumm ated with her first husband), Mrs. Cannon and her two children began living with M r. Cannon in his town house 3 in July 19 90. By N ovem ber 199 2, the C annon s had b ecom e enga ged. They declared th eir intent to save m oney to pu rcha se a large r hom e and pay fo r the even tual m arria ge ce remony. At the time of the engagement, Mrs. Cannon, a high school graduate, earned between $15,000 and $19,000 in annual wages (as a secretary) and received an additional $7,200 in annual child support. Mr. Cannon, possessor of an associate s degree, was earning approx imately $4 0,000 p er year as a n emp loyee of G E Glo bal Ex chang e Servi ces. In September 1993, Mr. Cannon purchased a new home in New Market (the New Market home ) with th e net pro ceeds f rom the sale of h is town house and a m ortgag e. He titled the New Marke t home so lely in his name. Mrs. Cannon and her two children moved into the New Market home and she began paying Mr. Cannon between $500 and $800 per month towards the mortgage debt and general living expenses. In April 1994 Mr. Cannon broached with Mrs. Cannon the topic of an ante nuptial agreement because h e was co ncerned a bout a prior bankruptcy proceeding initiated by Mrs. Cannon and her first husband. Mr. Cannon professed to be concerned that some of Mrs. Cannon s creditors might pursue his p re-marital asse ts and any jointly-he ld assets acquired after they were married.2 Mr. Cannon testified that he presented the proposed Agreement3 2 Neither pa rty offered spe cific eviden ce or argum ent at the hea ring in the C ircuit Court as to the exact effect the bankruptcy was anticipated to have upon either M r. Cannon s pre-marital or their f uture jo int assets . There was evidence presented that the bankruptcy was filed in February 1986 and that the threat, if one existed at all, would lose its efficacy by 1996. Mr. Can non, wh o the trial cour t generally credited in its oral opinion as the mo re credible witness of the two parties, stated that he did not know, when he executed the (contin ued...) 4 2 (...continued) Agreement, when the alleged threat from her creditors would end. 3 The portions of the Agreement of particular relevance to this case provided: RECITALS The parties stipulate and recite that: *** C. Each of the parties has made a full and co mplete disclosure to the other party of all of his or her own property and assets and of the value th ereof, to the b est of the disclosing party s knowledge. This agreement is entered into with a full knowledge on the part o f each as to the extent an d probab le value of the estate of the other, and of all the rights conferred by law on each in the estate of the other by virtue of said proposed marriage. D. Each of the parties has made a full and complete disclosu re to the other party of all of his or her income, expenses, and debts, to the best of the disclosing party s kno wledge. T his agreement is entered into with a full knowledge on the part of each as to the income, expenses, and debts of the other, and of all the rights conferred by law on each to alimony, support and maintenance by virtue of said proposed marriage. *** SECTION ONE FULL KNOWLEDGE OF BOTH PARTIES This Agreement is entered into by the parties hereto with full knowledge on the part of each of the income, expenses, and debts of the other, and of the extent and probable value of all of the property or estate of the other, and of all rights that, but for this Agreement, would be conferred by law upon them, in the (contin ued...) 5 3 (...continued) income, property or estate of the other, by virtue of the consummation of the said proposed marriage; and the rights of the respective p arties hereto in and to each other s estate and prop erty, of wha tsoever character the same may be, shall be determined, fixed and settled by this Agreement, and not otherwise. *** SECTION SEVEN RETIREMENT BENEFITS Each party agrees that any retirement benefits, titled in the other party s name alone, whether acquired prior to or during the marriage, shall remain the separate prop erty of the othe r par ty. During the marriage and in the e vent of divorce or d issolution of the marriag e, each party he reby waives any right, title and interest that he or she may have in an y retirement be nefits in which the other party now has or may hereafter acquire any interest whats oever. Retirement benefits shall include any pension, profit sharing, retirement and deferred compensation (including but not limited to IRA s, Keough s, SEPP s, 401(k) s, 403(b) s, TSA s, TDA s, CS RS, FERS ). *** SECTION FOURTEEN INDEPENDENT COUNSEL The parties acknowledge that each has been free to seek the advice of independent counsel of his or her ow n choosin g in negotiation and ex ecution of this A greem ent, and that the provisions of this Agreement constitute a reasonable and adequate settlement of their respec tive alimony, sup port, property rights, and personal rights. The parties further agree that each will be responsible for his or her own legal fees (contin ued...) 6 to Mrs. Cannon on or about 10 May 1994 for her review. She signed and had the Agreement notarized on 27 May 19 94. The A greemen t included se ctions that pre served ind ividually titled personal property to each party in accordance with a schedule incorporated by reference (and attached to the Agr eement), fix ed liability for deb ts incurred b y either party both prior to and during the anticipated marriage, compelled Mrs. Cannon to pay Mr. Cannon $1,000.00 per month for household expenses during the marriage (including mortgage, home maintenance, and utilities), mutually waived alimony if the Cannons d ivorced, preserved M r. Cannon s right to the N ew M arket home (w hich remained titled solely in his name), and 3 (...continued) incurred in th e preparatio n and neg otiation of this Agreem ent. *** SECTION EIGHTEEN GOVERNING LAW AND SEVERA BILITY *** Should any provision of this Agreement be found, held or deemed to be unenforceable, voidable or void, as contrary to law or public policy under the laws of Maryland or any other jurisdiction, the parties intend that the remaining provisions of this Agreement shall nevertheless continue in full force. The Agreem ent did not c ontain a termination provision. By design, the legal obligations in antenuptial agreements do not terminate, without explicit language to the contra ry, until its conditions of performance are discharged upon death or divorce of the parties. See Cannon v. Cannon, 156 M d. App. 387, 406, 846 A.2d 1127, 1138 (2004) (observing that the potential of such dissolution or death is le raison d etre for the Agreement. ) (citing Moore v. Jacobsen, 373 Md. 185 , 194-95, 817 A .2d 212, 217-18 (2 003)). 7 allowed Mr. Cannon the right to eject Mrs. Cannon from the New Market home after providing sixty days notice, but allowed her and her children exclusive use of the home during that sixty day period. Both parties contested before the Circuit Court the amount of discussion between them regardin g the Agreement prior to its execution. They also contested the level of knowledge each had about the other s finances a t the time of e xecution o f the Agr eement. Mrs. Canno n at first maintained th at there was no discussion of the Agreement before she signed it, but later conceded that at least Mr. Cannon advised her that she would pay $1,000 per month for ho useho ld costs ( mortga ge and utilities). Mrs. Cannon stated, at different times, that she nev er read the contents of the Agreement or only glanced at the Agreement or skimmed o ver it after it w as prese nted to h er in the N ew M arket ho me. Mrs. Cannon admitted that, at the time she signed the Agreement, she knew Mr. Cannon worked full time with computers for GE Global Exchange Services, paid partially for the New Market home with proceeds from the sale of his town home, and that he owned a car. She also explained that, despite saving money with Mr. Cannon to help pay for the New Market home and the 1994 wedding, she had no savings and that she had no specific knowledge of the amou nt of M r. Cannon s annual in come at th e time she e xecuted th e Agreem ent. On redirect examination, Mrs. Cannon stated that she understood specific portions of the Agreement, including the requirement to maintain individual checking, savings, and credit card accounts. She steadfastly maintained, however, that she did not read through the 8 Agreement before signing it in the New Market home immediately after Mr. Cannon presented it to her, despite th e fact that the notary that notarized her execution of the Agreement testified that the document was signed by Mrs. Cannon at the New Market Farme rs and M echan ics Ban k. Mr. Cannon testified that he discussed his finances and income with Mrs. Cannon, prior to the execu tion of the A greemen t, when he completed the mortgage financing forms to purchase the New M arket hom e. While he admitted that he did not tell her the purchase price of the property nor his exact annual income, he maintained she had actual knowledge of the extent of his real and personal p roperty, his full-time job, and that he had thousands of dollars in a re tirement acc ount. 4 He stated that he asked her continuously about the Agreement after she received it on 10 May. H e claimed that he advised her to seek an attorney or outside a dvice bef ore she sign ed the Ag reement, which she declined to do. Mr. Cannon also pointed to Mrs. Cannon s divorce and the sep aration agre ement ne gotiated w ith her first husban d, both attaine d with the a dvice of c ounsel, as ind icators that she was not unaware of the operation of similar agreements and the desirability of legal advice and/or representation in such matters. Contrary to her earlier statement on direct examination that she signed the Agreement on the same day it was presented to her and without substantive discus sion about it with M r. 4 The retirement account contained approximately $60,000 at the time the Agreement was executed. 9 Cannon, Mrs. Cannon testified on rebuttal that Mr. Cannon, while not asking her daily in a continuous barrage th at she sign th e Agreem ent, did ask h er about the Agreem ent postdeliv ery. 5 B. The Circuit Court weighed the question of the validity of the Agreement using an analytical approach espoused by Mrs. Cannon.6 First, the trial court assessed whether the Agreement was fair and equitable, concluding at one point that the Agreement was fair and equitable when cons idered in ligh t of the claim ed bankr uptcy issues at th e time it was 5 The Circuit Court, in its oral opinion, stated the following regarding the conflicting evidence on Mrs . Cannon s receipt and eventual e xecutio n, without any discussion, of the Agreem ent, [t]he benefit of telling the truth is you don t have to remember what you said. I, I think M s. Cann on s no t being c andid w ith the C ourt an d I m b eing rea l blunt. 6 Mrs. Cannon s five factor test was gleaned from John F. Fader, II & Richard J. Gilbert s Maryland Family Law, which su mmarize d what it co nsidered f ive impo rtant considerations to determine the validity of a premarital agreement. Although we do not know which edition the C ircuit Court relied upon in its reasoning , we will refer to the Third Edition, originally published in 1990 and updated with a 2004 Cumulative Supplement. The five important considerations enumerated are, [1] fair and equitable in procurement and result[; 2] parties must make frank, full and truthful disclosure of all their assets[; 3] the agreement must be en tered voluntarily, freely and w ith full knowledge of its meaning and effect[; 4] the importance of independent legal advice in evaluating whether the agreement was voluntarily and understan dingly made is emphas ized[; 5] there is a confidential relationship between the parties which, if a contest to va lidity occurs, shifts the burden of proof to the one attempting to uphold the agreement to prove that it is fair and equitable. Fader & Gilber t, supra, at §14- 2(b). 10 executed. It explained that the Agreement was valid, fair, and equitable if it were to be analyzed when the threat of ba nkruptcy com plications pre sumably still existed through 1996. The trial court summarized the extent of disclosure between the parties prio r to execution of the Agreement and whether the disclosure was full, frank, and truthful. The court credited Mr. Cannon s testimony that at least some discussion had o ccurred w ith Mrs. Cannon about his assets when he applied for a loan to purchase the New Market home. Mrs. Cannon had knowledge of Mr. Cannon s ability to qualify for financing to purchase the home, buy a car, and keep a full-time job with some pretty good money working weekend overtime. The trial court also observed that Mr. C annon d id not have full knowledge of the potential liability to him, if any, from Mrs. Cannon s bankruptcy filing. The Circuit Court concluded that Mrs. Cannon appreciated the legal effect of the Agreement and entered the Agreement voluntarily. The court reasoned that Mrs. Cannon entered the Agreement voluntarily because [o]ne has some obligation to exercise some independent learning as to what s going on. I don t think that anything prevented Ms. Cannon from having an understanding. As to Mrs. Cannon s declination to seek legal advice, the trial court concluded that she was not discouraged from seeking legal advice and her independent choice to remain unadvised did not affect adversely the validity of the Agree ment. Lastly, the Circuit Court addresse d the existence of a co nfidential relationship between the parties. It stated that the issue of a confidential relationship doesn t cause me 11 to focus on the burden of proof and that the issue of confidentiality in the relationship goes beyond that. It explained that the parties pre-marital living arrangements and Mrs. Cannon s monthly contributions of $500 to $800 for expenses did not establish confiden tiality yet suggests some reliance. In w hat appears to be the only portion of the oral opinion explaining why the court ultimately concluded that the Agreement was invalid, the cou rt stated, there was a co nfidential relationship to the extent that Ms. Cannon was justified or I d say should, ah, maybe it s not justified [sic] is the right word. B ut Ms. C annon u nderstand ably believed that the purpose was to get through this bankruptcy issue and the n the m atter wo uld be a t an end . . . . I think there is some justification therefore for her not spending as much time dwelling on it, and I accept the facts that she, under those circumstances, made, knew as much as she needed to know. The cou rt, after declarin g the Ag reement in valid after 1996, ordered pendente lite alimony paid to Mrs. Cannon. C. The Court of Special Appeals reversed the trial court, declaring the Agreement valid. It agreed with the trial court that consideration of the evidence regarding the following factors favored the validity of the Agreement: disclosure; knowledge of the effect of the Agreem ent; and whether independent legal advice was or could have been sough t. Cannon, 156 Md. App. at 409-412, 846 A.2d at 1140-41. Relying on its own cases decided since Hartz and Levy (and departing from the analysis in Hartz and Levy), the intermediate appellate court examined the existence of a confidentia l relationship a s a question of fact. 12 Id. at 412-15, 846 A.2d at 1141-43. It explained tha t the trial court both misapplied the analysis of the existence of a confidential relationship and, though apparently finding one to exist, erred in its application of the existence of the confidential relationship as a factor in determinin g the alleged invalidity of the A greemen t. II. The Evolution of the Legal Analysis of Antenuptial Agreements in Maryland A. As Con tracts Gene rally In its broadest sense, an antenuptial agreement is, of course, a contract. Thus, from the earliest reported cases of this Court on the subject to the present time, we review antenuptial agreeme nts under t he obje ctive law of con tract inter pretation. Herget v. Herget, 319 Md. 466, 470, 573 A.2d 798, 800 (1990 ) (holding that the terms of antenup tial agreeme nts are subject to the objective law of contrac t interpretation); Naill v. Maurer, 25 Md. 532, 538 -39 (1866) (holding, in an appeal regarding a w idow s right for an allowance of dower, that an antenu ptial agreement is a question o f contract interpretation that, as a contract validly entered, b arred the w idow s cla im); Ward v. Thompson, 6 G. & J. 349, 35657 (1833) (holding valid an antenuptial agreement compelling the husband to surrender a ll rights to his wife s personal and real property in trust, even upon death of the wife, where the antenuptial agreement had no language limiting the power of the trustee to distribute the property upon death of th e wife). W e examin e the terms o f antenup tial agreeme nts for good 13 faith, consideratio n, and the p arties objectiv e intent, even as to provisions barring or preventing accrual of the legal and equitable rights to property of the soon-to-be-wed spouse upon th e death of the o ther. Naill, 25 Md at 538. Although perhaps based in part on legal fiction and part societal norm, we have stated that the consummation of the marriag e is itself sufficient consideration for the antenuptial agreement (but not because it constitutes partial performance). Id.; Busey v. McCurley, 61 M d. 436, 4 42-45 , 61 Am . Rep. 117 (1884) (antenuptial agreeme nt valid on its f ace with marriage as consideration ); Crane v. Grough, 4 Md. 316, 333-34 (1853) (holding that marriage is sufficient consideration for an antenuptial agreeme nt, but not as part performance); see also Schnepfe v. Schnep fe, 124 Md. 330, 337, 92 A. 891, 893-94 (1914) (observing tha t courts of equity long had exercised jurisdiction over antenuptial agreements based on marriage as consideration) (citing Naill v. Maurer, 25 Md. 5 32 (18 66)). Like other contra cts, antenup tial agreeme nts also are as sailable by a contesting party for fraud, duress, coercion, mistake, undue influence, or a party s incompetence. See Wlodarek v. Wlodarek, 167 Md. 556, 560-67, 175 A. 455, 456-59 (1934) (affirming overruling of demurrers by estate of deceased father and his daughter where evidence of fraud and misre presentation in signing an antenuptial agreem ent was presented); Scher v. Becker, 163 Md. 199, 202-203, 161 A. 167, 168 (1932) (demurrer by the estate of the husband overruled where the widow sought to claim her marital rights barred by an antenuptial agreeme nt entered b ased on f raudulent m isrepresenta tion); Naill, 25 Md. at 538 14 (antenuptial agreement showed no evid ence o f fraud or inco mpete nce). A party seeking to invalidate an antenuptial agreement also could attempt to prove unconscionability at the time the contrac t was en tered. See Martin v. Farber, 68 M d. App . 137, 14 3-45, 510 A.2d 608, 611 (1986) (holding antenuptial agreement not unconscionable because trial judge pa lpably relied on circum stances arising a fter the e xecutio n of the agreem ent ). Ord inarily, [t]he law presume s every [perso n] to be capab le of making a valid deed or contract. Williams v. Moran, 248 Md. 279, 285, 236 A.2d 274, 278 (1967) (quoting Williams v. Robinson, 183 Md. 117, 121, 36 A.2d 547, 549 (1944)). When a party attacks the validity of a contract as invalid under fraud, duress, coercion, mistake, undue influence, or incompetence, normally that party bears the burden of proof.7 Dreisonstok v. Hoffman, 209 Md. 98, 102, 120 A.2d 373, 376 (1956) (holding tha t the burden of proof lies upon p arty alleging fraud by cle ar and indu bitable proo f ); Williams v. Moran, 248 Md. at 285, 236 A.2d at 278-79. If the attacking party meets its initial burden of production, the burden of production may shift to the party seeking to enforce the contr act. Thus, w hen the pa rty seeking to enforce a contract files the initial complaint, shoulders the burden of proving that the contract is valid and generates a prima facie case to that end, the defending party (the party seeking to invalidate the contract) bears the burden of production as to the defenses of 7 In other cause s of action in contract, a pa rty seeking enforcement of a contract may bear the bur den of proof . Taylor v. Nationsbank, N.A., 365 Md. 166, 175, 776 A.2d 645, 652 (2001) (holding the party seeking relief from an alleged breach of contract bears the burden of showing that a valid co ntractual ob ligation existed and tha t the alleged b reaching p arty actually breached the agreem ent). 15 fraud, duress, coercion, mistake, undue influence, or incompetence. In any scenario, the burden of proof by which the responsible party must satisfy the finder-of-fact in order to win a verdict in its favor does not shift du ring the trial. Lynn McL ain, Maryla nd Prac tice, Vol. 5, Maryland Evidence State & Federal, 244, 324 (2001). In a generic contract dispute, regardless of who initiates litigation, a p arty seeking to invalidate a contract who demonstrates that a confidential relationship existed between the parties thrusts the burden of proof to establish the validity of the contract on the party attempting to enforce the contrac t. Williams v. Moran, 248 Md. at 285 , 236 A.2d at 278 -79 (citations omitted). B. Antenu ptial Agree ments Sp ecifically In Levy v. Sherman, 185 Md. 63, 73-74, 43 A.2d 25, 31-32 (1945), we extended our analysis of antenuptial agreements beyond traditional contract analysis when we held in valid an antenuptial agreement because the party seeking to enforce the agreement failed to meet the ultimate burden of proof fixed by the existence of a confidential relationship between the parties. We stated that, when evaluating such disputes, an antenuptial contract is entered into in contemplation of marriage, whether the parties are engaged to marry at the time or not, it is required of each to make a frank, full, and truthful disclosure of their respective worth in real as well as person al prop erty. 8 Id. at 73, 43 A.2d at 29 (emphas is added). We 8 Antenuptial agreements were unlike pre-separation agreements, even at common law, betwe en a hu sband and w ife. See Hewitt v. Shipley, 169 Md. 221, 226, 181 A. 345, 347 (contin ued...) 16 acknowledged that a confidential relationship existed as a matter of law between a man and a woman in contemplation of an antenuptial agreement where marriage was its consideration. Without disclosure by each party and where th e allowan ce provide d in the agre ement is unfairly disproportionate to the worth at the time [of execution of the contract], the concealment gives rise to the implication of fraud, and the burden of proof is cast on those claiming under it w hen the in strum ent is attac ked, to sh ow that it was ente red f reely, volu ntarily, and knowingly and that each was given the opportunity to obtain independent legal advice. Id. at 73-7 4, 43 A .2d at 29 . 8 (...continued) (1935 ). A confidential relationship between a husband-and-wife entering a pre-separation (or post-marital) agreement made with the intent of limiting the marital rights (provided under Family Law Article § 8-1 01) is a que stion of fact that may be prov en by the party seeking to attack the a greemen t in order to shift the burden of proof to the party seeking to enforce the agre emen t. See Williams v. Williams, 306 M d. 332, 337, 508 A.2d 985, 988 (1986) (observing that circuit court made no factual findings as to a confidential relationship between the husband and wife before entering into a separation and property settlement agreement). Antenu ptial agreem ents are diff erent from pre-separa tion agreem ents in their formation and de velopm ent bec ause th ey rely upon marriag e as con sideratio n. In addition, the marital rights addressed in the Family Law Article of the Maryland Code have not yet attached when the antenuptial agreement is entered because the parties are not husband and wife . Maryland s Family Law Article expressly provides that a husband and wife may mak e a va lid an d enforc eabl e dee d or a gree men t that relat es to alim ony, supp ort, p rope rty, or personal rights o r a valid and en forcea ble settle ment of thos e same rights. Md. Code (1984, 1999 Repl. Vol.), § 8-101 (a) & (b) of the Family Law Article. Because of these differences, cases concerning pre-separation agreements between a husband and wife are not useful in evaluating the relationsh ip that exists between parties contemplating an antenuptial agreement where the pending (and potentially ill-omened) marriage is the consideration supporting the contrac t. 17 The consequence of the existence of a confiden tial relationship w as twofo ld. First, the burden of proof was allocated to the party seeking to enforce the agreement, regardless of gender, as a means to pre vent fraud. Second, a party seeking to enforce an antenuptial agreement in reliance on the objective contract interpretation theory cam e to court with its quiver of litigious arrows h alf-empty unless it was prepared to meet its assigned burden of proof. For example, after placing the burden of proof on the estate of Mr. Levy (which sought to enforce the agreement), the court held that there was no thing to sho w that a fu ll disclosure of Levy s worth was made to appellant at the time, nor that she was advised of the rights she wou ld acquire in Levy s prop erties upon marriage, and there is a total want of evidence to show that she had the benefit of independent legal advice. Id. at 78, 43 A.2d at 31-32. After Levy, we infrequently considered the issue of the validity of antenuptial agreements. Frey v. Frey, 298 Md. 552, 471 A.2d 705 (198 4); Hartz v. H artz, 248 Md. 47, 234 A.2d 86 5 (1967); Cohn v. Cohn, 209 Md. 470, 121 A.2d 704 (1956) (holding invalid a provision in an antenuptial agreement that waived a spouse s right to alimony void, as a matter of law , becau se it viola ted pub lic policy in favor o f prese rving m arriage ), overruled by Frey v. Frey, 298 M d. 552, 563 , 471 A.2d 705, 710 (1984); Ortel v. Gettig, 207 Md. 594, 116 A.2d 145 (19 55). In Ortel, we evaluated the evidence to enforce an antenuptial agreement and determined it to be insufficient to support the validity of the agreement. We observed that all antenuptial agreements, even those entered into for convenience, were made 18 between two parties involved in a confidential relationship and that each had the responsibility to the other to make a disclosure of their respective assets. Ortel, 207 Md. at 608-10, 116 A.2d at 152. Neither Mr. Ge ttig nor the ev entual M rs. Gettig ma de a full disclosure of his or he r net worth as of the time the antenuptial agreement was executed, even though he held a minimum of $75,000 and she $10,000 in assets. Because the estate of Mr. Gettig sought to enforce the antenuptial agreement, the burden of proof was placed on the estate to show th at a disclosure of Mr. Gettig s assets was made prior to Mrs. Gettig s waiver of pro perty righ ts in M r. Gettig s estate in the ante nuptial a greem ent. After noting that Mr. Gettig provided less than a full disclosure of his assets at the time the antenuptial agreement was signed, we explained, [t]he appellant seeks to supply the lack of such proof by attempting to show that the appellee knew what his worth was. She did have , as she testified, knowledge of the fact that the husband had an electrical business and supposed that he owned the business properties and two lots improved by three houses in a waterfront neighborhood in Baltimore County, one of which houses, at least, was quite a substantial building. We find nothing to show that she knew the actual value of the electrical business or of any of th e real estate, or w hat if anything he owned , or what inta ngible prop erty he may have owned. Such indefinite knowledge or information falls far short of actual know ledge o f his w orth. Id. at 612, 116 A.2d at 15 3. Thus, M rs. Gettig, who signed the antenuptial agreement the night it was presented to her and without the benefit of prior discussion or the reasonable 19 opportun ity to seek independent legal advice, received neither a full and fair disclosure of Mr. Gettig s assets nor possessed knowledge of their worth before entering the agreem ent. We revisited the subject of antenuptial agreements in Hartz v. H artz, holding that overreaching was th e correc t yardstick for me asuring their val idity. Hartz, 248 Md. at 57, 234 A.2d at 871. M rs. Hartz sou ght to invalidate an antenuptial agreement that barred her right to the property and estate of her deceased husband. Id. at 49, 234 A.2d at 866. The agreement recited that Mrs. Hartz had full knowledge of the extent and prob able value . . . of Mr. Hartz s assets; yet, the trial court held that the disclosure was not full and frank without a disclosure of the value of Mr. Hartz s estate and subsequently invalidated the agreeme nt. Id. at 54-55, 23 4 A.2d a t 869. At the time of the a greemen t, both Mr. and Mrs. Hartz held real property in excess of $160,000, and, although neither side divulged the exact worth of their respe ctive assets, b oth sides ha d estates of s ubstance th at each w ished to protect for the ben efit of their respective blood heirs as existed prior to the pending marriage.9 Id. at 51-5 4, 234 A .2d at 86 7-69. We explained that the trial court s analysis, which relied solely upon the lack of fu ll and frank disclosure of the n ature and value of the assets of Mr. Ha rtz (the party seek ing to 9 The initial draft of the antenuptial agreement was drawn at Mrs. Hartz s request. Her lawyer testified that Mrs. Hartz told him that she knew that Mr. Hartz was an own er or partowner of an ice cream company and had a f arm in V irginia. Hartz, 248 Md. at 53, 234 A.2d at 869. When Mrs. Hartz and her lawyer presented the agreement to Mr. Hartz, his lawyer recommended that both parties sign the agreement to protect fully their respective estates upon th e death of the o ther. Id. at 54, 234 A.2d at 869. 20 enforc e the ag reeme nt), was incom plete. Id. at 55, 234 A.2d at 869-70. The real test in a determination of the validity of an antenuptial agreem ent is whether there was overreaching, that is, whether in the atmosphere and environment of the con fidential relation ship there was unfairness or inequity in the result of the agreement or in its procurement. Id. at 57, 234 A.2d at 871 (em phasis add ed). While we did n ot require a trial c ourt to incant these words in its analysis as m agic wor ds or recite a particular m antra in de termining th e validity of an antenu ptial agreem ent, we made clear that a court must come to some conclusion about the unfairness or inequity of the agreement at the time it was entered and if an overreaching had oc curred . We also provided guidan ce, as a roadmap fo r practitioners and the courts of our State, for how to e valuate the v alidity of antenu ptial agreem ents unde r this overreaching standard. After recognizin g the impo rtance of th e confide ntial relationship that existed between the parties, which co mpelled th e party seeking to enforce the agreem ent to shou lder the ultima te burden of proof , we reiterated that this con fidential relation ship calls for frank, full and truthful disclosure of the wo rth of the property, real and personal, as to which there is a waiver of rights in whole or in part, so that he or she who waives can know what it is he or she is waiving. Id. at 56-57, 23 4 A.2d a t 870-71 (f ootnote om itted). [A]d equate knowledge [by the spou se attacking the validity of the agreement] of that frank, full and truthful disclosure would reveal . . . co uld serve as a substitute fo r a less-than-c omplete disclosu re at the tim e the ag reeme nt was entered . Id. at 57, 23 4 A.2d at 871. 21 In addition to the duties imposed by a confidential relationship to make a frank, full, and truthful disclosure (or prove knowledge) and to evince that the allowance made to the party waiving his or her rights was not unfairly disproportionate, the enforcing party was expected to prove that the antenuptial agreement was entered into voluntarily, freely and with full kno wledg e of its m eaning and ef fect. 10 Id. If an inade quate disclosure and an unfairly disproportionate allocation existed, the validity of the agreement must be tested by other standards- that is, was the benefit to the wife [the party attacking the agreement] comme nsurate with that which she relinquished so that the agreem ent was f air and equ itable under the circumstances and did the subsequent would-be repudiator of the contract enter into the agre emen t freely an d unde rstandin gly. Id. at 58, 234 A.2d at 871-72. We further explained that it was possible the party seekin g to enforc e the agree ment cou ld meet this burden even if he or she did not make a proper disclosure or that the opposing party lacked precise knowledge of the righ ts it was w aiving. Id. at 58 , 234 A.2d at 8 72 (c iting Lind ey, Separatio n Agreem ents & Ante- nuptial Co ntracts, § 90-4 4). 10 We stron gly encourag ed throug hout Hartz that a party drafting an antenuptial agreement complete a frank, full, and truthful disclosure document. For example, we explained that [t]he ca reful practition er has often caused to be prepared an itemization of the property covered by the agreement with appraised values and caused it to be made part of the agreement. Hartz, 248 Md. at 57, n.3, 234 A.2d at 871, n.3. We also explained that such a written disclosure may be the key that turns the lock of the door leadin g to impregnab le validity o f the an tenuptia l agreem ent. Id. at 57, 234 A.2d at 871 (footnote omitted ). 22 In Hartz, we held that [t]he record demonstrates that there was no fraud, actual or implied, no overre aching, no unfairnes s and no p ressure lead ing to the ex ecution of the agreem ent. Id. at 60, 234 A.2d at 872. Mrs. Hartz had at least an ap proximate ly definite knowledge of the valu e of the pro perty as to wh ich of those rights were b eing rele ased . . ., and that level of knowledge was sufficient to support the validity of the antenuptial agreeme nt. 11 Id. at 63, 23 4 A.2d at 874. She conceded that she signed the agreeme nt freely and voluntarily; indeed, she would have been hard-pressed to state otherwise because the agreem ent wa s propo sed by he r and in itially drafte d by her a ttorney. We concluded by stating, [i]n summary, we think tha t the record shows that the agreement was entered into freely and volun tarily, with full understanding of the rights being w aived and with at least an approxim ately definite knowledge of the value of the property as to which of those rights were being released and that the results of the agreeme nts were fair and equitable under the circumstances. Mrs. Ha rtz is bound by the agreem ent. Id. at 63, 234 A.2d at 87 4 (citations omitted). 11 We noted throughout the opinion that Mrs. Hartz knew that Mr. Hartz was 1) owner, part-owner, or operating head of an ice c ream compa ny, 2) owner of a thous and acre farm in Rappah annock C ounty, Virginia , that she visited prior to the marriage, 3 ) sufficiently w ell off financially to spend only two days a week overseeing the operation of his comp any while spending the remainder of his time at a su bstantial reside nce on the farm, 4) su fficiently well off to offer to pay Mrs. Hartz s expenses for her Washington apartmen t, and 5) suf ficiently well off to consider paying her $500 a mon th for h er perso nal exp enses. Hartz, 248 Md. at 51-54, 60-61, 234 A.2d at 867-69, 872-73. 23 In Frey v. Frey, we con sidered an a rgumen t that a bar aga inst antenup tial agreeme nts made in a nticipation of divorce vio lated Ma ryland public policy protecting the institution of marriage. 298 Md. at 560, 471 A.2d at 709. We found no public policy existed as such in light of the evolution of statutory no-fault divorces and the 1978 Marital Property Act which allowed parties to agree what property is not to be considered marital property or family use personal prop erty and thu s cont rol the d istributio n of pr operty up on divo rce. Id. at 562, 471 A.2d at 710 (citing Md. Code (1974, 1980 Repl. Vol.), Courts & Judicial Proceedings Article, § 3-6 A-01(c), (e )). Until Frey, only those antenuptial agreements that disposed of rights and property upon death of the spo use were valid; any agree ment, regardless of the parties consent, tha t contemplated a waiver of rights or property upon divorc e was v oid. See Cohn v. Cohn, 209 M d. 470, 1 21 A.2 d 704 ( 1956) . We further exp lained that [a]ll such antenuptial agreements, therefore, are to be evaluated upon the factors indicated in Hartz v. H artz, 248 Md. 4 7, 234 A .2d 865 (1967 ). Frey, 298 Md. at 563, 471 A.2d at 711. Although the underlying agreement in Frey was not properly before us for substantive analysis because the trial court failed to evaluate the antenuptial agreement beyond ruling it to be void as a matter of public policy, we reiterated, for the benefit of the trial court on remand, the key elements of Hartz. After summarizing these elements, w e stated aga in that the real test of an antenuptial agreement was whether overreaching in the atmosphere and environment of the confidential relationship had occurr ed. Id. at 564, 471 A.2d at 711 (quoting Hartz, 248 Md. at 57, 23 4 A.2d at 871). 24 After our decision in Frey, ana lysis o f the valid ity per se of antenuptial agreeme nts has been undertaken only by the intermed iate appellate c ourt. This has drawn some scrutiny from legal commentators.12 See John F . Fader, I I & Ri chard J . Gilber t, Maryland Family Law 14-5 (3rd. ed. 1990) (stating Now what does all of this mean? There is not much help in answering this question from the appellate courts in Maryland. They have not had the opportunity to clarify issues because there has b een little litigation in the area. ). In Martin v. Farber, 68 Md. App. 137, 510 A.2d 608 (1986), the Court of Special Appea ls held that an otherwise valid antenuptial agreement could be challenged nonetheless as unconsc ionable; un conscion ability to be analyzed in the context as of the time the agreement was entered. In 193 9, Mr. Farber entered an antenu ptial agreem ent with his affianced bride three days before the wedding, waiving his right to all the property that she acquired prior to, or would acquire during, the marriage.13 Id. at 139, 510 A.2d at 608-609. The trial court determined that the agreement was valid on its face; yet, it would not enforce the agreem ent becau se it would be uncon scionable to do so. Id. at 143, 510 A.2d at 611. The trial court determined that the result of the antenuptial agreement forty-four years later would leave approximately $275,000 in assets, titled in Mrs. F arber s nam e and partly 12 Interpreting the terms of presumably valid antenuptial agreements, as exercises in contract interpretation, however, has occurred since Frey in both appellate c ourts. Herget v. Herget, 319 M d. 466, 573 A.2d 79 8 (1990); Heineman v. Bright, 140 Md. App. 658, 782 A.2d 365 (20 01). 13 Mrs. Farb er inherited re al property in Baltimore City from her first husband and approxim ately $20,00 0 from insuran ce proc eeds. Martin, 68 Md. App. at 139, 510 A.2d at 609. 25 acquired from Mr. Farber s wages during the marriage, to Mrs. Farber s grandchildren from her first ma rriage. Id. at 139-40, 510 A.2d at 609. Mr. Farber would be left w ithout a share of her intes tate estate . Id. at 140, 5 10 A.2 d at 609 . The Court of Special Appeals examined the evidence as it existed at the time the agreement w as executed. It reversed th e trial court, explaining that, at the time the agreement was executed, [n]othing in the Farbers antenuptial agreement or in the circumstances surroun ding its exec ution rende rs it unconscion able or otherwise legally objectionable. Id. at 144, 510 A.2d at 611. The intermediate court held that the trial court misapplied the doctrine of unconscionability when it exam ined the conseq uence s of the contrac t forty-fou r years afte r its exec ution. In Herget v. Herget, the Court of Special A ppeals held valid an an tenuptial agreement. 77 Md. App. 268, 550 A .2d 382 (1988 ), rev d on other grounds, 319 Md. 466, 573 A.2d 798 (1990). 14 Mr. Herget, who sought to enforce the antenuptial agreement, and Mrs. Herget attached a purported ly full disclosure o f their assets and worth to the antenuptial agreeme nt. 15 14 The Co urt of Spe cial Appeals affirmed the trial court s judgment declaring the antenuptial agreement valid, but interpreted the terms of the agreem ent to perm it the wife to claim a moneta ry award in the divorce ac tion. We issu ed a writ of certiorari to interpret the terms of the antenuptial agreement, not to consider its validity per se. As such, we reversed the judgment of the Court of Special Appeals and agreed with the Circuit Court that Mrs. Herget s claim to the marital property was barred by the terms of the antenuptia l agreeme nt. Herget, 319 M d. at 477 , 573 A .2d at 80 3. 15 Prior to receiv ing the draf t copy, the parties m et with Mr. H erget s lawyer and disclosed their respective financial information to him. Mr. Herget listed his assets and net worth at $1,604,000. Mrs. Herget listed her assets and net worth at $690,000 and a note anticipating the paymen t of $80 ,000 fr om he r grand mothe r s will. Herget, 77 Md. App. at 273, 550 A.2d at 384. Altho ugh M r. Herget ina dvertently had not listed a pension interest (contin ued...) 26 The agreement, forwarded to the Herget s as a draft on 12 September 1973 and signed on 27 September 1973, included a waiver of alimony and a surrender of all marital claims by Mrs. Herget to Mr. H erget s p roperty. Id. at 272- 73, 550 A.2d a t 384. While Mrs. Herget did not seek independent cou nsel before signing the a greemen t, which sh e claimed s he did not read, Mr. Herget s attorney had suggested by letter that she seek independent legal advice before signing the agre emen t. Id. Mrs. Herget challenged the validity of the agreemen t, claiming that the trial court committed clear error in concluding otherwise. After reciting the Hartz overreaching in the atmosphere and enviro nment of a confide ntial relationship test, the interm ediate appe llate court disagreed with Mrs. Herget and explained that the trial cou rt had conc luded corre ctly that the agreem ent was f air and equitable. It determined there was substantial evidence that Mrs. Herget had entered [the agreeme nt] voluntarily, free ly and with fu ll knowle dge of its meaning and effe ct as requ ired by Hartz. Id. at 277, 550 A.2d at 386. Mrs. Herget understood the full meaning and effect of a waiver of alimony because she had executed, and abided by, a similar waiver in a 1970 separation agreement from her first husband. She also evinced an understanding of other portions of the agreement at hand when she apportioned the proceeds of the sale of the marital home in accordance with their respective cash 15 (...continued) worth $71,700 , the intermed iate appellate co urt held that the trial court s conclusion that M r. Herget s disclosure was frank, full and truthful was not clearly erroneous. Id. at 275, 550 A.2d at 385. 27 contributions as stated in the antenuptial agreement. Lastly, although she was only a high school graduate, Mrs. Herget was found by both courts to be an intelligent, sophisticated person on par with Mr. Herget, who held a bachelor s degree and was a successful businessman. Id. at 278, 550 A.2d at 386. The Co urt of Spe cial Appe als did not m ention in its analysis any confidential relationship that may have existed between the parties. In Harbom v. Harbom, Judge Arrie Davis of the Court of Special Appeals again affirmed a trial court s finding of the validity of an antenuptial agreement. 134 Md. App. 430, 438, 760 A.2d 27 2, 276 (20 00). Mr. H arbom s f ather foun ded a pla stics comp any, acquired investment accoun ts and real property, and was the h older of several loans. In 1962, the f ather gave these assets to Mr. Harbom, subject to the condition that they remain solely his separate property if he ever married. On 31 March 1986, Mr. Harbom and his soon-to-be wife entered into an antenuptial agreement negotiated by their respective parents. The agreement provided that both parties waived any right to the o ther s prem arital property or any proceed s traceable to their re spectiv e prem arital pro perty. Id. Mrs. Harbom s father, a Harvard-trained tax attorney, negotiated the terms of the antenuptial agreement as early as 3 January 1986, as evidenced by a letter sent by M r. Harbom s father that acknowledged that the proposed antenuptial agreeme nt would not waive Mrs. Harbom s right to the marital home and retitle Mr. Harbom s premarital home in bo th of their names as tenants by the entir ety. Id. at 447, 448, 760 A.2d at 280, 281. The agreement did not disclose expressly the value o f the liste d assets . Id. at 449, 760 A.2d at 282. 28 Mrs. Harbom challenged the validity of the agreement, claiming that a f ull disclosure did not occur because Mr. Harbom had not disclosed the assets values. The Court of Special Appea ls explained that the disclosure need not be a drastically sweeping one and the wife need not know the husband s exact means so long as she has a general idea of his p roperty and resourc es. 16 Id. at 449, 7 60 A.2 d at 282 (ci ting Lin dey, Separation Agreements and Antenuptial Contract, § 90-44). Even without a full, frank, and truthful disclosure, the enforcing party yet may satis fy his or her burden to show that the antenuptial agreement meets the overarching overreaching standard. The intermediate appellate court determ ined that the parents discussions and negotiations about the assets referre d to in the antenuptial agreement amply supported the trial court s conclusion that Mrs. Harbom had actual knowledge of every fact regarding [Mr. Harbom s] assets and income that she was interested in or sought to discover and that she was relinquishing any claim to these assets. Id. at 449, 760 A.2d at 282. Furthermore, even if Mr. Harbom s disclosure was not full and Mrs. Harbom s know ledge insufficient to be considered actual knowledge of the value of the assets, Mr. Harbom met his burden to prove 16 The trial court noted that Mrs. Harbom s father had negotiated the agreement on his daughter s behalf and that [Mrs. H arbom] h ad reason ably good understanding of what she was givin g up, and that Mrs. H arbom k new that [ Mr. Ha rbom s co mpany] w as worth a lot of money, and she gave it up. Id. at 449, 760 A.2d at 282. This finding appears, at first blush, to run counter to our requirement that a full, frank, and truthful disclosure occur at the time the agreement is signed. A more careful reading of Hartz, however, reveals that such a level of disclosure merely assists the enforcing party in meeting its burden of proving that an o verreac hing di d not oc cur. 29 that the agreement was not an overreaching one and that Mrs. Harbom entered the agreement voluntarily, freely and with full knowledge of its meaning and effect and that there was no overre aching . Id. at 450, 760 A.2d at 282. The Court of Special Appeals held correctly that she was given every opportunity to negotiate, or draft a different proposed antenuptial agreem ent if the agreem ent wa s not ac ceptab le to her. Id. at 450, 760 A.2d at 282-83. C. In Summation In Levy v. Sherman, the Court of Appeals departed from a straight forward contract anal ysis of antenuptial agreements that had been utilized by the Court from the previous cent ury. The Court chose to focus on the alleged existence of a confidential relationship, which, if one existed, would place the burden of proof on those claiming under it when the instrument is attacked to show that the contract was fair and reasonable. After reviewing cases from o ther juris dictions , availab le secon dary sou rces, and Ma ryland s 19th century cases on the m atter, Levy stated that it w as impossib le to reconcile the diverging authorities as to how to determine whether an alleged confidential relationship existed prior to the execu tion of a n anten uptial ag reeme nt. Instea d, Levy stated that: 1) A confidential relationship existed between both parties; 2) Each p arty was r equired to mak e a fran k, full, and truthful disclosure of their respective worth in real and personal prop erty; 3) In those cases where the appropriate disclosure was not made and the allowance in the ag reement was u nfairly disproportionate to the worth, fraud was implied ; and 30 4) The burden of proof w as placed o n the enfo rcing party to show: A) The agreement was fre ely, voluntarily, and k nowing ly entered, and B) Each party was given the opportunity to seek legal advice. In 1955 (ten years after Levy), Ortel v. Gettig extended the breath of the confidential relationship analysis. The trustee of Mr. Gettig s estate argued that the marriage between the 62 year old husband and the 42 year old wife was one of convenience, where the parties would not be clouded by the ardor of youth Ortel held that it was of no moment if the party seeking to enforce the agreement and his spouse were married for convenience; the confidential relationship existed nonetheless as postulated in Levy (the age gap between Levy and his spouse were r oughly si milar). Ortel reiterated the Levy analysis, and held the particular antenuptial agreement invalid in that case because the disclosure was not full and frank with regard to the husband s worth. Hartz, in 1967 and for the first time, analyzed an antenuptial agreement as a question of overreaching, rather than disclosu re. We stated there that the real test in a determination of the validity of an antenuptial agreement is whether there was overreaching, that is, whether in the atmo sphere an d environ ment of th e confide ntial relationship there was unfairness or inequity in the result of the agreement or in its procurement. Hartz, after reciting the language from Levy as to disclosure, added that the purpose for the frank , full, and truthf ul disclosu re was to disclose to the attacking party the prope rty subject to waiver so that he or she who waives can know what it is he or she is waiv ing. 31 Hartz extended Levy and explained that if the attacking party had adequate knowledge of what such a d isclosur e wou ld revea l, then a f ormal d isclosur e was n ot requ ired. Hartz nonetheless encouraged that careful practitioners should still make the frank, full, and truthful written disclo sure becau se such a d isclosure w ould turn th e lock of th e door to impreg nable v alidity. Hartz did not exercise this metaphor because the Court agreed with the trial court that there was neither adequate disclosure nor actual knowledge on its record. Instead, Hartz applied the overreaching analysis to allow for valid agreements even where no disclosure was made, [the] failure to disclose or lack of precise knowledge will not necessarily be f atal to the validity of the antenuptial agreement. Hartz also described alternate standards by which the validity of the agreement could be proven: 1) Is the benefit to the waiving party commensurate with what he or she relinquished such that the agreement was fair and equitable? 2) Did the party attacking the agreement enter the agreement free ly and understa ndin gly? An affirmative showing on these questions could demonstrate that the attacking party was not prejudiced by the lack of informatio n and that th e attacking p arty could not repudiate the agreeme nt. Frey, in 1984, broadened the Hartz overreac hing ana lysis further by exten ding it to antenuptial agreements made in anticipation of divorce. Prior to Frey, antenuptial agreeme nts conditioned on divorce (or deal ing w ith al imony, etc.) were void as against the 32 public policy of Maryland to protect t he institu tion of m arriage . Frey reite rated favo rably, without applying, the Hartz analysis and opined that the real test of an antenuptial agreement was one of overreaching . II. Mrs. Canno n asserts here that the Circuit Court an d the Court of Special Appeals erred in not recogn izing fully the co nfidential rela tionship that existed as a matter of law between the parties. Had the courts recognized the relationship, they should have required M r. Cannon to have made a full, frank, and truthful disclosure of his assets, w hich he fa iled to do. If the existence of a confidential relationship is no longer established as a matter of law in such situations, she urges that any new standard should not be applied retrospectively and the case should be remanded to the trial court to determine whether a confidential relationship existed as a matter of fact based on the evidence of record. Mr. Cannon retorts that the question of whether a confide ntial relationship existed is moot as to the q uestion o f the valid ity of the antenuptial agreement in this case. In the alternative, he argues that the Court of Special Appeals, after paying homage to the adoption in 1972 of Article 46 of the Maryland Declaration of Rights (the Equa l Rights Amendm ent),17 correctly held that the existence of a confidential relationship between parties to an antenuptial agreement is a question of fact in ea ch case, no t a relationship presumed as 17 Article 46 of the Maryland Declaration of Rights states, [e]quality of rights under the law shall no t be abrid ged or d enied b ecause of sex . 33 a matter of law to exist in each case. He believes (correctly) that the ERA precludes any determination of legal status based on gender. As a result, he claims that the underpinning has changed for the recognition as a matter of law of co nfidential rela tionships in antenuptial agreement situations. Because confidential relationships in general con tract law are established when one party is dominant over the other and, he asserts, a presumption based on gender existed at common law that the male w as domin ant to the female in the marriage relationship, a confide ntial relationship no longer may be assumed to exist as a matter of law. As a result, Mrs. Cannon did not adduce by sufficient evidence that a confidential relationship existed in this case and, therefore, the burden o f proof p roperly fell upon he r to establish the in validity of the an tenuptial agre ement. 18 We maintain our view that a confidential relationship exists, as a matter of law, between the parties entering an antenuptial agreement. Mr. Cannon, and the Court of Special Appeals s cases that he cites, are incorrect to rely on the adoption o f the Ma ryland ERA to denigrate the existence of a confidential relationship as a matter of law in such contexts. 18 Mr. Cannon also encourages us to adopt the Uniform Premarital Agreement Act (UPAA) as the correc t analytical standa rd by which to evaluate challenges to the validity of antenuptial agreements. The UPAA does not provid e a role for a confiden tial relationship in its analytical paradigm, but requires the attacking party to bear the burden of proof and appears to limit the doc trine of unc onsciona bility. While M r. Cannon lists several jurisdictions that, in his opinion, have adopted successfully the UPAA, we remain reluctant to change our common law standard and align Maryland with the UPAA approach. Adopting a uniform act, and the consequential change in Maryland Family Law, is best left for fuller consideration, in the first instan ce, to the G eneral As sembly, wh ere it can be m ore thorou ghly debate d and e valuate d than th e parties have in the pres ent case . 34 There is no ambiguity in Levy or Hartz concernin g the conf idential relation ship that exists in antenuptia l agreeme nts the par ties stand in a c onfidentia l relationship with each other in such situations. Th e pre-marita l relationship b y itself is of a no consequence; however, when parties in a pre-marital relationship enter an antenuptial agreement where the consideration for the agreement is the impending marriage, a c onfidentia l relationship n ecessarily arises. There is no gender consideration involved, and thus the ERA is of no m oment in th e analysis because the parties are required to make mutual disclosures prior to entering the antenuptial agreeme nt. Hartz, 248 Md. at 56-57, 234 A.2d at 87 0-71 ( this c onfidentia l relationship c alls for frank, full and truthful disclosure of the worth of the proper ty, real and pe rsonal, as to which there is a waiver of rights in w hole or part, so that h e or she who waives can know what it is he or she is waiving. ) The Court of Special Appeals s and Mr. Cannon s reliance on the ERA is a misguided application of reasoning more suited to post-marital agreements, where the presumption of a confiden tial relationship at common law was based on recognizing male dominance in the marriage relationship. Inapposite ly, the common law dev elopmen t of antenu ptial agreem ents explains that a confidential relationship is imposed so that each party bears the duty to make a frank, f ull, and tr uthful f inancia l disclos ure. Compare Manos v. Papachrist, 199 Md. 257, 261-62, 86 A.2d 474 , 476 (1952) with Levy, 185 M d. at 73, 4 3 A.2d at 29. In Manos, we explained that a confidential relationship between spouses in a post-marital agreement presumed that the male was the dom inant party; yet, ultimately the existence of the 35 relationship was a qu estion of fa ct. Twenty-five years later and after the passage of the ERA, the Court of Special Appeals noted that this presumption of male dominance in post-marital agreement analysis was an inva lid classif ication b ased on gende r. Bell v. Bell, 38 Md. App. 10, 14, 379 A.2d 419, 421 (1977). While the gender-based classification basis for recognition of confidential relationships in the context of post-marital agreements was invalidated by the ERA, we already noted, supra, that an antenuptial agreement is a species of contract of another sort than its distant cousin, the post-marital agreement. The intermediate appellate court s reliance in the present case on the analysis of confidential relationships in post-m arital agr eemen ts is inco rrect. See Tedesco v. Tedesco, 111 Md. App. 648, 683 A.2d 1133 (1996); 19 Hale v. Hale, 74 Md . App. 555 , 539 A.2d 247 (198 8); Blum 19 The Court of Special Appeals here incorrectly relied on Tedesco to explain away our decisions regarding the existence of confidential relationships in antenuptial agreeme nts that aros e prior to the pas sage of the ER A. When the voters of Maryland ratified what is now Article 46 of the Declaration of Rights ... [t]h e presum ption of dom inance in a marriage by a husband was erased ... Accordingly, in our assessment of the issues presented, the existence of a confidential relationship and the imposition of a constructive trust based upon a finding of a confidential relationship, we must focus on either wife/husband cases subsequent to the passage of the Equal R ights Amendm ent or cases prior to the Equal Rights Amendment not involving wife/husband transfers, i.e., relationships in which n o presum ptions we re present. Cannon v. Cannon, 156 Md. App. 387, 413-14, 846 A.2d 1127, 1142 (20 04) (first em phasis in original, subsequent emphasis added) (quoting Tedesco v. Tedesco, 111 Md. App. 648, 667-68, 683 A.2d 11 33, 1143 (1996) (citatio ns omitted)) . While the ERA clearly demands (contin ued...) 36 v. Blum, 59 Md. App. 584, 477 A.2d 28 9 (1984); McClellan v. McClellan, 52 Md. App. 525, 451 A .2d 334 (1982 ). Even though a confidential relationship is presumed to exist as a m atter of law , its existence may be rebutted in a given case by the party seekin g enforce ment of th e agreem ent. If the party seeking en forceme nt can prov e that a negotiation took place between the parties an actual give and take occurrence, then a court properly may treat the contested agreement as a contract between equals. See Harbom, 134 Md. App. at 448, 760 A.2d at 281 (observing that the M rs. Harbom s father neg otiated the an tenuptial agre ement in his daughter s best interest . . . by insisting to Mr. Harbom s father that Mr. Harbom retitle his pre-marital home as tenants by the e ntirety). Merely pro ving that the attacking party drafted the agreement would not be enough, without evidence of some negotiation; evidence as to who drafted the agreement is considered more properly in analysis of an argument under the overreaching standa rd. See Ha rtz, 248 Md. at 60, 234 A.2d at 873 (observing that the husband required a mutual waiver o f marital rights and ultimately holding that the ag reement was v alid). 19 (...continued) a closer inspection of gen der-based classifications in analyzing p re-separation agreeme nts in husband/wife relationships because of the histo rical bias of ma le dom inance , see Manos, 199 Md. at 26 1-62, 86 A .2d at 476, th e tempora l focus of the analysis of antenuptial agreeme nts is at the time the agreement is signed, before the husban d/wife rela tionship comes into being. At the time the antenuptial agreement is entered, the parties have a confidential relationship to each othe r to make th e requisite disc losure. This r equireme nt is inheren tly gende r neutra l. 37 With the existence of a confidential relationship between the parties, the burden of proof correctly falls upon the party seeking to enforce the agreement. The c orrect standard for determining the validity of an antenuptial agreement remains, however, whether there is an overreaching, that is, whether in the atmosphere and environment of the confidential relationship there was unfairness or inequity in the result of the agreement or procur emen t. Hartz, 248 M d. at 57, 2 34 A.2 d at 871 . One way (and p erhaps the g old standar d) a party seekin g to enforce an agreement may meet its burden, justifying the validity of the antenuptial agreement, is if it documents a full, frank, and truthfu l disclosure of his or her assets and their worth before the antenuptial agreement is signed.20 Thus, the circumspect legal practition er (or unrep resented pa rty) will memorialize in writing such a disclosure in order to minimize litigation of challenges to the validity of an antenuptial agreement. Likewise, if the enforcing party is able to show that the party attacking the agreement possessed knowledge of the assets subject to the agreem ent s waiver provisions, then the agreement also may be found to be valid.21 The purpose behind 20 A full, frank, and truthful d isclosure means, at one extreme, listing every asset and a reasonable value if one seeks to utilize the key that turns the lock of the door leading to impregna ble validity. Hartz, 248 Md. at 57, 234 A.2d at 871 (footnote omitted). Mrs. Cannon alleges that the Court of Special Appeals misinterpreted the disclosure requirement by accepting a more gen eral level of d isclosure an d not a full, frank, and truthful disclosure. See Cannon, 156 M d. App . at 410, 8 46 A.2 d at 114 0. As w e shall ex plain, infra, a general disclosure, although in sufficient to render the A greemen t impregn able, may co ntribute toward s show ing that a n overr eachin g did no t occur. 21 Proof of knowledge, unlike full, frank, and truthful disclosure, does not require that the enforcing party demon strate that the attac king party had knowle dge of the discrete value (contin ued...) 38 a requirem ent of disclo sure or kno wledge is so that he or she who waives can know what it is he or she is waiving. Id. at 56-5 7, 234 A.2 d at 870 -71. If this is proven by the enforcing party and insufficiently rebutted by the attacking party, there can be no overreaching and the attacking party must resort to other com mon law contract de fenses to attack the va lidity of the anten uptial agreem ent. A party seeking to enforce an antenuptial agreement, if he or she fails either to make the required disclosure or is unable to prove knowledge by the attacking party yet may prove that the agreement was not unfairly disproportionate to the attacking party at the time the agreement was entered. For example, an antenuptial agreement that provides valuable consideration (other than marriage itself) in exchange for a waiver, or where the parties agree to a mutual waiver of the marital rights, is more likely not to be foun d unfairly disproportionate. If the analysis of the allowance versus waiver p rovisions of an agreem ent results in a determination that the terms are unfairly disproportionate as to the party challenging the agreeme nt, the enforcing party must show that ove rreachi ng did n ot occu r. On this point, but not meant as an exhaustive list of factors, the trial court may consider such factors as the extent of the disclo sure (if any), w hether the a ttacking pa rty had the opp ortunity to seek legal 21 (...continued) of each asset. Instead, knowledge means that the attacking party must be shown to have adequate knowledge knowledge of the existence of the assets subject to the waiver and knowledge of wha t those assets a re worth in sum so tha t the attacking pa rty may be found to know what it is he or she is waiving. 39 advice before signing the agreement, and whether the attacking party voluntarily and knowin gly relinquished his or her rights. Furthermore, a failure to disclose or a lack of precise knowle dge by the attac king party, by itself, m ay not be eno ugh to estab lish as invalid an ante nuptial a greem ent. A party seeking to attack the agreement may resort to the other potential contract defenses enumerated earlier frau d, duress, coercion, mistake, undue influence, or incompetence on the part of a party. While most of these defenses to contract enforcement likely will be considered to some degree in the analysis of an argument regarding overreaching, the doctrine of uncon scionability rema ins a viable a lternative, if the unconsc ionable condition can be proven to have existed at the time the agreement was entered. See Martin v. Farber, 68 Md. App. at 144-45, 510 A.2d at 611 (holding agreement valid after determining trial court incorrectly applied do ctrine of unconscion ability). III. We turn now to the question of whether the Court of Special Appeals erred in finding the Agreement valid in the present case. The trial court held that the Agreement would have been valid were it to terminate with the end of the alleged bankruptcy threat in 1996; however, becau se Mr . Cannon all egedly sought to extend the duration of the Agreement beyond that point, counter to Mrs. Cannon s expectations, it was invalid. Mrs. Cannon argues that the Court of Special A ppeals abused its authority in overturning the trial court s decision because that judgment was n ot clearly e rroneo us. See Md. Rule 8-131(c). She also 40 argues that the Agreement here is similar to the post-marital agreement in Williams v. Williams, 306 Md. 332, 342, 508 A.2d 985, 990 (1986), where we reversed the judgment of the Court of Special A ppeals, h olding th at ag reem ent in valid for u nconscionability. Lastly, if the Court of Special Appeals had applied the Hartz factors as Mrs. Cannon wishes and properly considered the existence of a confidential relationship, she postulates that it could not have found the Agreement valid. Mr. Cannon ripostes that his antecedent disclosure of his assets, combined with Mrs. Cannon s knowledge o f the effect of the anten uptial agreement, renders the Agreement impregnable. He also believes that the existence of a confidential relationship is a moot point in resolving the alleged invalidity of this Agreement. Even if an express factual finding as to the existe nce of a c onfidentia l relationship is required and the burden of proof placed on him to establish the validity of the Agreement, the record clearly supports, in Mr. Cannon s view, both an adequ ate disclosure of assets and consideration of the Hartz factors in his favor. Lastly, he contends that the trial court incorrectly considered parole evidence in holding the Agreement invalid. A. Mr. Cannon is wrong in his assertion that his antecedent disclosure made the Agreement impregnable. There is no way to make an antenuptial agreement or any other contract impregnable. To best protect against an attack based on overreaching, the enforcing party must disclose both the assets and their value to the party attacking the 41 agreeme nt. The disclosure here, which merely listed assets, was insufficient to meet that high standard. Mr. Cannon arg ues that the burden of proof fixed on him by the confidential relationship should not change the result of the Court of Special Appeals s decision. The circumstances surrounding the Agreement must be examined to decide whether there was overreaching, that is, whether in the atmosphere and environment of the confidential relationship there was unfairnes s or inequity in the result of the a greemen t or in its procur emen t. Hartz, 248 M d. at 57, 234 A.2d at 871. We remain mindfu l that the basic issue is one of overreaching, not the mere absence of full disclosure, and examine the disclosure for prejudice to the atta cking p arty, Mrs . Cann on in th is case. Id. at 58, 234 A.2d at 872 (q uoting Linde y, Separatio n Agreem ents & Ante- nuptial Co ntracts, § 90-44). The Agreement here is valid if it was fair and equitable in light of the rights waived and if the contract was entered freely and understandingly. Id. at 58, 234 A.2d at 871-72. As discussed supra, Mr. Canno n s disclosure was less than the full, frank, and truthful disclosure require d for im pregna bility. The trial court found that there was some disclosure and that Mrs. Cannon had some knowledge of Mr. C annon s a ssets and income at the time the Agreement was entered. In addition, the Court of Special Appea ls correctly recognized that Mrs. C annon s c o-habitation with M r. Cannon for four years prior to the marriage gave her ample opportunity to attain at least a general idea of Mr. Cannon s worth. Cannon, 156 Md. App. at 409-10, 846 A.2d at 1140. She knew of his full time job (and 42 overtime) and his ability to finance the purchase of the New Market Home only after he applied the pro ceeds f rom the sale of h is town house to the pu rchase . At the same time, M r. Cannon had a comparable level of knowledge o f Mrs. Cann on s assets. The same disclosure that listed Mr. Cannon s assets, without values, also listed Mrs. Cannon s assets, al so with out valu es. Mr. C annon was credited by the trial court with a general knowledge of Mrs. Cannon s income and assets. As a result, we agree with the C ourt of Special A ppeals and conclude that the amo unt of disclosure and the knowledge each of the Cannons had regarding the other s assets and income favors the validity of the Agreem ent. We also examine whether Mr. Cannon established that Mrs. Cannon had knowledge of the effect of the Agreement and entered into it voluntarily. To resolve this, we also consider the role of seeking independent counsel in assessing challenges to the validity of antenuptial agreements. The trial court offered the following, [o]ne can t ju st remain ignorant, hide their eyes, and say, gee, I didn t know what this was all about so it s got to be undone. One has some obligation to exercise some independent learning as to what s going on. I don t think anything prevented Mrs. Cannon from having an und erstanding. Mr. Cannon presented evidence that Mrs. Cannon possessed knowledge of at least some of the terms of the Agreement and the Agreement itself recited that both parties had full knowledge and effect of the waiv ers. Mr. Cannon also produced a notary who testified that Mrs. Cannon entered her bank office alone and asked that her signature on the Agreement be notarized. 43 Although it was disputed when Mrs. Canno n received the Ag reement, the trial court discredited her claim that she signed the Agreement at h ome after only a short discussion with Mr. Can non. The trial court further gave credit to Mr. Can non s evidence that [ Mr. Cannon] didn t really bother her every day about it. He asked a couple of times. Mrs. Cannon appeared to have at least several days to examine the Agreement and Mr. Cannon inquired at least a couple of times about her concerns regarding the Agreement while the two co-habitated in the New Market home. In this case, Mrs. Cannon did not ava il herself of th e opportu nity to seek legal c ounsel. We are loathe to craft a brightline rule where both sides are compelled to seek counsel prior to entering into an ante nuptial a greem ent. It was enough for Mr. Cannon to demonstrate that Mrs. Cannon had the opportunity to seek counsel and that she was not discouraged to do so.22 See Levy, 185 Md. at 73-74, 43 A.2d at 29. Mrs. Cannon had some appreciation of the importance of legal counsel in similar situations because she had been represented by counsel during her prior divorce and separation agreement negotiation, as well as her bankruptcy proceedings. Both parties agreed, at the least, that Mr. Cannon did not discourage Mrs. Cannon from see king legal a dvice prior to execu ting the A greem ent. Furthermore, because she had several days to review the Agreement before she signed it, Mrs. Cannon had the 22 Mrs. Cannon failed to meet her burden of production to rebut this fact when she admitted that she wa s not discoura ged from seek ing c ounsel during the seve ntee n days betw een w hen she w as ha nded the Agr eem ent a nd w hen she e xecu ted it on 27 M ay. 44 opportun ity and apparently chose not to seek independent legal advice. These considerations militate in fav or of the va lidity of the agree ment. B. Mrs. Cannon assert s that application of the Hartz factors compel a different conclusion than reached by the intermediate appellate court. We find her argument uncompelling. Mrs. Cannon appears to rely on a list of factors she marshaled at trial to assist the court in determining the validity of the Agreement. The Fader/Gilbert treatise she relies upon lists as important considerations the summary of Hartz that we reiterated as dicta in Frey. She relies on the tria l court s find ing that a confid ential rela tionship occurr ed. As we explained earlier, Hartz detailed a multi-step analysis to determine the validity of an antenuptial agreeme nt under an overreac hing stand ard. At the o utset, the parties stand in a confiden tial relationship w ith each othe r and are ex pected to make a full, frank, and truthful disclosure of the identity and worth of assets that are subject to eventual w aiver by each in the agreement. This relationship compels both parties to make comparable levels of disclosures at or before the time the agreement is executed. When the validity of the agreement is contested, th e confide ntial relationship at the time of the execution of the agreement means that the enforcing party must shoulder the burden of proof as to the validity of the Ag reement. 45 Here, the Court of Special Appeals correctly analyzed the trial court s attempt to scrutinize the Agree men t and dete rmin ed rightf ully th at the anal ysis m andated by Hartz favored a finding of valid ity. Even with the burden of proof allocated to Mr. Cannon, the evidence he adduced, wh ich the trial cou rt credited, sho wed that M rs. Canno n had am ple opportun ity to review the Agreement and seek counsel before she signed it. After cohabitating with Mr. Cannon for four years before the marriage, she had a degree of knowledge of Mr. Cannon s assets. Based on her experience with her first divorce, she knew the legal significance of her waivers in the Agreement. There was no evidence suggesting that she did not sign the Agreement voluntarily; in fact, Mrs. Canno n admitted that Mr. Cannon s questions about whether she signed the Agreement prior to 27 May did not rise to a level of a continuous barrage a far cry from duress. Mrs. Cannon maintains that the Agreement in this case is not too far afield from the post-marital agreement in Williams, declarin g that the factua l similaritie s are str iking. Inex plica bly, she relies on a post-marital agreement case while strenuously arguing, supra, that such case s are inapplic able to anten uptial ag reeme nts. In an y case, Williams is inapposite in its result because the trial court there found the separation agreement invalid as unconscionable. In Williams, the husband entered into the post-marital agreement in an attempt to reconcile marital difficulties with his less-than-faithful wife. 306 Md. at 333-34, 508 A.2d at 986. As a result, he transferred title to most of the marital property to his wife s name solely while remaining responsible for the marital financial obligati ons. Id. The trial 46 court held, and we agreed, that while the contract was validly entered, the result was unconsc ionable and ref used to enforc e the ag reeme nt. Id. at 342-43, 508 A.2d at 990-91. In the present case the trial court did not rely on unconscionability to defeat the Agreem ent. Although one term of the Agreement was described as draconian,23 we agree with the intermediate appellate cou rt tha t such does no t sink to the lev el of unconsc iona bility. Cannon, 156 Md. App. at 417-20, 846 A.2d at 1144-46 . Even under Williams, a basic aspect of unconscionability is that it must shock the conscience of the court when it considers the terms and results at the time the contract is entered. 306 Md. at 335-38, 508 A.2d at 987. Furthermore, the total Agreement here hardly could be said to shock the conscience of the trial court because it deemed the Agreement at least valid to some extent (until 1996 or the alleged end of the ban kruptc y threat). JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER. 23 The trial court observed that the clause g ranting Mr. Cannon the right to eject Mrs. Cannon from the New Market home upon sixty days notice was as gently written a provision as it could be given it s one day one could wake up and be told you re out of here. I ll be back in 60 days. So I find that, that frankly even at the time of signing this was a pretty drac onian s et of term s. 47
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