Conscionability of Prenup Agreements
DETERMINING WHETHER A PREMARITAL AGREEMENT IS CONSCIONABLE
If a spouse to a divorce or separate support case argues that a premarital agreement is not conscionable at the time the other spouse seeks to enforce the agreement (i.e. at divorce), the probate court must apply the standards set forth in the DeMatteo case.
First, the test is whether the premarital agreement is fair and reasonable at the time of execution and the courts will not apply the unconscionability test at the state of execution.
Second, a premarital agreement which meets all the other requirements for validity will not be held invalid merely because it is one-sided.
Third, to be fair and reasonable a prenup agreement need not approximate a financial award at divorce.
Fourth, full and fair disclosure does not mean a detailed disclosure of assets must be provided.
Fifth, the requirement that an agreement be free from fraud, deception, etc. remains intact.
Sixth, while the DeMatteo case did not expressly dictate that both parties must have independent legal counsel, significant emphasis was placed on the fact that the wife did have a lawyer that explained everything to her and therefore she could not complain that she did not understand the consequences of the agreement.
For more information about premarital or ante nuptial agreements, contact our office today by telephone or email.
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