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Prenuptial agreements: what exactly is unconscionability?

We’ve been discussing in recent posts on this blog the topic of prenuptial agreements, specifically what they can and cannot deal with under state law, as well as the circumstances under which a court may not enforce them. In this post, we want to touch briefly on the issue of unconscionability.

In the context of prenuptial agreements, unconscionability essentially refers to the fundamental fairness of the agreement. State law provides that a prenuptial agreement is not enforceable in cases where it can be proven that the agreement was unconscionable at the time of execution and that the party seeking to have the agreement struck down: (1) was not provided “fair and reasonable disclosure” of the other party’s assets and liabilities; (2) did not sign a written waiver of the right to have disclosure of these assets and liabilities; and (3) did not or could not reasonably have had “adequate knowledge” of these assets and liabilities. 

Unconscionability is a matter of law and is therefore decided by the court once the facts of the case have been established. In proving unconscionability, it is critical for the party seeking to have the agreement struck down to provide adequate evidence to support each of the elements listed above. For parties seeking to enforce the agreement, by contrast, the task is to provide adequate evidence of fair and reasonable disclosure, valid written waiver, or adequate knowledge of the assets and liabilities in question. Strong enough evidence on any one of these points weaken the case for unconscionability.

Exactly what constitutes an unconscionable agreement is a matter of specifics. In our next post, we’ll look at a recent high-profile divorce in which the issue of unconscionability came up and what the results were in that case. 

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