(dissenting).
I dissent.
An unrepresented spouse who signs a divorce settlement prepared by counsel representing the other spouse, may attack a settlement which is not fair and reasonable and free from fraud. 28 P.O.F.2d 663 § 3 (1981); Prophet v. Peterson, 77 Idaho 257, 291 P.2d 290 (1955). Further, the represented spouse has the burden of proving it is fair and reasonable and free from fraud. 24 Am.Jur.2d Divorce and Separation § 836 (1983). In this case, Carolee was unrepresented and the agreement was not fair and reasonable. The divorce decree should have been vacated under SDCL 15-6-60(b).
The majority quotes In re Estate of Henry, 6 Ariz.App. 183, 186, 430 P.2d 937, 940 (1967), which states “We know of no law suggesting that because a husband is not represented by counsel, a property settlement signed by him is voidable.” The above rule may be correct where lack of representation by counsel is the sole reason to set aside the agreement. However, Henry also states that such an agreement must be fair and equitable and free from fraud or undue influence.
The majority fails to address the equity of the agreement between Lawrence and Carolee. Even the trial court’s findings point out the substantial disparity between the parties and what they received under the agreement. Carolee received property with a net value of less than $40,000. Lawrence, on the other hand, received property with a net value exceeding $115,000. Caro-lee received less than twenty-six percent of the property, while Lawrence received more than seventy-four percent of the property. In addition, Lawrence retained approximately $159,150 of property which he inherited, plus a pension plan valued at $17,280. When this property is included, Carolee’s assets are still valued at less than $40,000, while Lawrence’s total assets exceed $290,000. This staggering disparity in the parties’ financial status is further widened by the income of the two parties. Lawrence’s salary is $52,000, while Caro-lee’s meager salary is $3,600 per year. Though Carolee is to receive alimony of $600 per month for one year, this amount is reduced to $400 per month over the next three years, and then terminated. This result is simply unfair.
In view of the settled law in regard to the factors to be considered for the division of property or an award of alimony, this agreement was neither fair nor equitable. Cole v. Cole, 384 N.W.2d 312 (S.D.1986); Temple v. Temple, 365 N.W.2d 561 (S.D. 1985); Goehry v. Goehry, 354 N.W.2d 192 (S.D.1984). In Laird v. Laird, 322 N.W.2d 254 (S.D.1982), the husband was awarded property valued at $159,000, while the wife was awarded property valued at $21,000. The Laird court held that such a property division was not fair and equitable and that the trial court abused its discretion in the *590division of property. In Clarke v. Clarke, 423 N.W.2d 818 (S.D.1988), the unrepresented wife was awarded approximately five percent of the marital assets. She later hired counsel and sought to vacate the judgment under SDCL 15-6-60(b). This court reversed the trial court’s refusal to set aside the judgment. The Clarke court held that the applicant had showed excusable neglect and that she had a meritorious defense as she would be entitled to a judgment more favorable than the current one upon a new trial. The meritorious defense requirement was easily satisfied because of the unfair and inequitable judgment. Therefore, the majority’s result is not only unfair and inequitable but contrary to leading precedent in this court. Carolee should be granted relief from the inequitable agreement prepared by her husband’s attorney, which she signed while unrepresented. This clearly qualifies as “[a]ny other reason justifying relief” under SDCL 15-6-60(b)(6).
The majority emphasizes the fact that Carolee should have investigated further prior to negotiating the agreement. The majority also emphasizes the fact that Lawrence and Carolee worked out the agreement independent from his counsel and that his counsel merely drafted the finished product. This ignores the reality of the situation. Lawrence was able to negotiate with the benefit of sound legal advise, while Carolee was on her own. Though Lawrence’s counsel advised Caro-lee that she could retain independent counsel, he could not advise her as to the propriety of entering into the agreement. Further, there was evidence that Lawrence had strong influence over Carolee, as he abused her physically. In view of this, and the final inequitable result, the majority’s statement that Carolee “entered into the agreement voluntarily, freely and intelligently” is questionable at best, and Carolee should be granted relief under SDCL 15-6-60(b).