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Unconcionability at issue in high-asset divorce case

In our last post, we began speaking about the issue of unconscionability as it relates to prenuptial agreements. As we noted, although state statute lays out the elements of unconscionability quite clearly, it isn’t always easy to determine when an agreement is fundamental unfair or not. It really depends on the details of the case.

We wanted to take a brief look at the issue as it came up in the recent divorce case of Chicago power couple Ken and Anne Dias Griffin. Along with unconscionability, duress was one of the issues in the case. Durress came up due the fact that Ken Griffith had apparently taken her to a therapy session two days before their wedding which resulted in her signing a prenuptial agreement she had previously refused to sign. The psychologist had apparently urged her to sign the agreement in order to avoid conflict. At the time, Anne Griffin did not know that the therapist had a prior professional relationship with Ken Griffin. Ultimately, however, it was determined that did not sign the agreement under duress. 

The issue of unconscionability came up by virtue of the massive wealth difference between the two—Ken being a multibillionaire and she having roughly $50 million in assets, not including tax liabilities. It isn’t clear whether a decision on this issue has been reached yet, but it is worth pointing out that different states have different law regarding what qualifies as unconscionable.

In Florida, the fairness of a prenuptial agreement pertains to the time at which it was executed rather than the time of divorce. In addition, there must have been some failure to provide fair and reasonable disclosure. Without those elements, there is no argument for unconscionability. We will be sure to keep our readers updated on any developments with the Griffin case as regards unconscionability. 

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