The Journal of The DuPage County Bar Association

Back Issues > Vol. 23 (2010-11)

Attacking the Conscionability of Post-Nuptial Agreements
by Hon. Thomas A. Else

Post-nuptial agreements are frequently employed to settle the disposition of the marital estate subsequent to the marriage, but before the filing of a petition for dissolution. Frequently, the parties are at odds at the time the agreement is reached, and one side or the other, or both, experiences buyer’s remorse when the terms of the agreement are put into play in a dissolution of marriage action. A common argument for the non-enforcement of the agreement is that it is unconscionable and that no one in their right mind would have entered into it. This article explores the parameters of that argument, which can be more successful than one may think.

Initially, it should be remembered that post-nuptial agreements are contracts and are subject to the same rules of interpretation.[1] Among other reasons, a court may set aside an agreement if it is unconscionable, which has been defined as a bargain “which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept on the other.”[2]

In the case of In Re Marriage of Richardson,[3] the First District noted that the inquiry into unconscionability requires two distinct considerations: (1) the conditions under which the agreement was made and (2) the economic circumstances resulting from the agreement.[4] The determination as to whether the agreement is unconscionable depends on the relative economic circumstances of the parties immediately after the agreement was made.[5]

The Second District has broken down the two prongs of the unconscionability argument into procedural unconscionability and substantive unconscionability, or a combination of both.[6]

Procedural unconscionability means that an impropriety existed at the time of the formation of the agreement, such that one of the parties was deprived of a meaningful choice. For example, the existence of duress in the formation of an agreement between spouses may render it procedurally unconscionable. Duress can consist of oppression, undue influence, or taking advantage of another’s stress to the point that the person is deprived of the exercise of free will.[7]

Duress is measured by an objective standard, rather than a subjective one, and the acts or threats constituting the duress must be either legally or morally wrongful.[8] Furthermore, the party asserting that the agreement is procedurally unconscionable on grounds of duress has the burden of proving, by clear and convincing evidence, that he was bereft of the quality of mind essential to the making of the contract.[9]

Consequently, the threshold attack on the unconscionability of a post-marital agreement will generally be to argue that the party seeking to set aside the agreement was under duress, and that the agreement is therefore procedurally unconscionable. In In re Tabassum,[10] the reviewing court found that duress did not exist at the time of the creation of the agreement. On the other hand, in Richardson,[11] the First District found that duress voided the agreement. A careful reading of both cases leaves one with the impression that, although the existence or nonexistence of duress cannot be clearly defined, the court knows it when it sees it. Certainly, all post-nuptial agreements have their own tale to tell – as to how and why they were created in the first place – and many of them are the result of circumstances that may be less than cheerful. Whether the formation of the agreement was tainted by duress remains a difficult question of fact.

The second type of unconscionability is somewhat easier to address. Substantive unconscionability focuses on the fairness of the agreement and whether or not it is one-sided.[12] In examining the substantive conscionability of the post-marital agreement, the court looks to the economic circumstances of the parties, both immediately following and resulting from the agreement.[13] Therefore, it follows that if one party gets all the assets and the other party gets none, as the result of the post-marital agreement, it is more likely that the court will find the agreement to be substantively unconscionable.
Commonly, disputes about the validity of post-nuptial agreements arise when one party has second thoughts about the amount they originally promised in the agreement. More than common is a situation in which a party wants out of an agreement based on the idea that he promised more at the outset than he believes he should have.

 In defense of the validity of the agreement, it may be worth arguing that a disproportionate allotment of property or income to one of the parties is nothing more than a gift from one spouse to the other, or a debt of conscience depending on the facts of the case. Could it be said that abrogating the agreement is the same thing as taking back a gift? In equity, a deed of gift cannot be reformed.[14] Nonetheless, the prevailing case law focuses on whether the court believes the agreement is fair, not what the parties believed at the time they entered into it.

[1] In re Marriage of Vella, 237 Ill. App. 3d 194, 198, 603 N.E.2d 109 (2d Dist. 1992).

[2] In re Marriage of Richardson, 237 Ill. App. 3d 1067, 1080, 606 N.E.2d 56 (1st Dist. 1992), citing In re Marriage of Carlson, 101 Ill. App. 3d 924, 930, 428 N.E.2d 1005 (1st Dist. 1981), and quoting Hume v. U.S., 132 U.S. 406, 410, 10 S.Ct. 134 (1889).

[3] Richardson, 237 Ill. App. 3d at 1080.

[4] Richardson, 237 Ill. App. 3d at 1080, citing In Re Marriage of Foster, 115 Ill. App. 3d 969, 451 N.E.2d 915 (5th Dist. 1983).

[5] Richardson, 237 Ill. App. 3d at 1080, citing In Re Marriage of Smith, 164 Ill. App. 3d 1011, 518 N.E.2d 450 (1st Dist. 1987).

[6] In re Marriage of Tabassum, 377 Ill. App.3d 761, 775, 881 N.E.2d 396 (2nd Dist. 2007).

[7] Tabassum, 377 Ill.App. 3d at 775, citing Richardson, 237 Ill. App. 3d at 1082.

[8] Tabassum, 377 Ill.App. 3d at 775.

[9] Tabassum, 377 Ill.App. 3d at 775, citing In re Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 215, 633 N.E.2d 225 (4th Dist. 1994).

[10] Tabassum, 377 Ill. App.3d at 775.

[11] Richardson, 237 Ill. App. 3d at 1082.

[12] Tabassum, 377 Ill. App.3d at 777, citing Kinkel v. Cingular Wireless, 223 Ill.2d 1, 28, 857 N.E.2d 250 (2006).

[13] Tabassum, 377 Ill. App. 3d at 778.

[14] Marvin v. Kelsey, 373 Ill. 589, 590, 27 N.E.2d 469 (1940).
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