February 12, 2021
Does a Prenuptial Agreement Work?
Before marriage, a couple can enter into a prenuptial agreement to deal with things like alimony and property division if the couple divorces. If done properly so that all the legal requirements are met, those agreements are, with few exceptions, almost certain to be enforceable.
One exception is that the agreement won’t be enforced if a spouse can convince the judge that, at the time of the divorce, the agreement is “unconscionable.” The law does not provide much guidance in defining “unconscionable.” One judge found that if enforcement of the agreement would work an injustice to one of the parties, it is unconscionable. In another case, an appeals court said that unconscionability is something that the trial judges knows when he sees it based on all the evidence that is presented.
How would you rule in the following cases? In each case, both spouses were represented by their own independent lawyers, exchanged complete financial information and voluntarily entered into the then fair and not unconscionable agreement. Both spouses agreed that the prenuptial agreement was valid when made.
Case 1: The husband argued that he should get more than the agreement provided. He claimed the agreement was unconscionable and shouldn’t be enforced to benefit the wife because she had an affair during the marriage and at the time of the divorce had moved to another state to live with the boyfriend.
Case 2: The wife wanted more than the agreement provided. She claimed the agreement was unconscionable and shouldn’t be enforced to her detriment because during the marriage a serious accident rendered her indefinitely unable to work full time or to resume her career.
In Case 1, the court enforced the agreement. Despite the wife’s conduct the result was not “unconscionable.” In Case 2, the court didn’t enforce the agreement. The judge obviously felt that leaving the wife in her situation would be unjust. In both cases, there were other facts that influenced the decision to some degree.
These cases are intensely fact driven. In a close case, strong advocacy and properly presented facts will assist the judge in making a good decision, whether that is enforcement or no enforcement.
This article first appeared in the February 4, 2021 edition of The Cheshire Citizen.« Back to all news