In the language of prenuptial agreements, you may come across the word “unconscionable.” It might sound like a mouthful, but the definition is pretty straightforward.

“Unconscionable” means something not right or reasonable, especially because it’s not considered fair or moral. The word is often used to describe actions, decisions, or conditions that are shockingly unfair or unethical.

In legal contexts, an unconscionable contract is so one-sided or unfair it shocks the conscience of the court. Such contracts are often found to be void and unenforceable.

What Does “Unconscionable” Mean For Your Prenup?

If the court deems your prenup, or any specific terms of the prenup, to be unconscionable, the provisions may be held to be invalid. Without a valid prenup, the court divides your assets according to your state’s laws.

In many jurisdictions, for a prenup to be enforceable, both parties must enter it voluntarily. The prenup must include full disclosure of assets, be signed without coercion or duress, and include terms that are generally fair and not one-sided.

If a prenup is challenged in court, a judge may rule that an unconscionable clause, or even the entire agreement, is invalid and unenforceable.

Examples of Unconscionable Clauses

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Here are just a few examples of clauses that would likely be deemed unconscionable by the court:

Waiver of All Spousal Support Rights

A clause completely waiving a party’s right to spousal support, especially if a significant disparity in income or assets between the parties exists, may be considered unconscionable, unless there is significant consideration given for the waiver.

If one spouse earns substantially more than the other, the Court could see the waiver as an unjust and inequitable result, leaving one party unable to maintain a minimal standard of living while the other enjoys a surplus.

Additionally, it is important to note that the conscionability of any spousal support provision in a prenuptial agreement is measured at the time of enforcement. That means that if circumstances significantly change by the time of the divorce a court may find that the spousal support waivers are no longer conscionable, even if the provisions were fair at the time of signing,

Full Financial Forfeiture Upon Divorce

A provision requiring one party to forfeit all their marital assets to the other party upon divorce, regardless of the circumstances or the length of the marriage, could be viewed as grossly unfair.

Courts typically view such terms as coercive, especially if there’s a significant imbalance in the parties’ financial understanding or bargaining power. Additionally, these clauses can violate public policy by leaving one party without means for self-support, potentially making them reliant on public assistance.

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Payment for Cheating

While some states recognize clauses that obligate one spouse to pay the other if they have an extramarital affair (known as infidelity clauses), many do not.

No-fault divorce states, like California, do not recognize these clauses since a Judge cannot legally use this information to divide assets. Even having one in your prenup may be viewed as unconscionable and puts the prenup at risk of being invalidated altogether.

Penalties for Weight Gain or Aging

Clauses penalizing a spouse for gaining weight, showing signs of aging, or other changes in personal appearance are not only unconscionable but also could be seen as discriminatory.

These clauses not only violate public policy but also undermine the spouse’s dignity and contradict the principle that marriage is a partnership of mutual respect and support. Such clauses are likely to be invalidated by a court as they contradict the basic tenets of fairness.

Custody or Child Support Provisions

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In nearly all fifty states, you cannot include child custody or support in your prenup.

Any terms predetermining child custody or child support issues are considered unconscionable, as these decisions are based on the child’s best interest at the time of the divorce, not in advance.

Courts retain the jurisdiction to ensure that child-related decisions are made according to current circumstances and the child’s welfare, not the parents’ prior agreements.

Extreme Division of Property

Certain terms in a prenup may be found unconscionable if they permit one spouse to keep the majority of the property, encompassing both premarital and marital assets.

First, these may reflect a significant power imbalance or undue influence at the time of signing, suggesting that one spouse was at a significant disadvantage.

Second, this type of provision often ignores the contributions, both financial and non-financial, of the disadvantaged spouse to the marriage, essentially negating the partnership aspect of marriage recognized by the law.

Lastly, these clauses can manifest injustice, particularly if they leave one spouse in a dire financial state post-divorce.

The Bottom Line: Be Careful Which Clauses You Add to Your Prenup

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A good prenup lawyer will be able to tell you which clauses to include in your prenup and which could be problematic. Working with a qualified prenup attorney is a great way to ensure your prenup will hold up during divorce since they can guide you in crafting a document beneficial to both parties.

Further, a prenuptial agreement is meant to be collaborative. The point of a prenup is to dispel confusion and encourage meaningful conversations about financial planning. A major red flag is when your partner is overstepping boundaries and asking for clauses only beneficial to them.

Book a consultation call with me if you need support crafting a mutually beneficial prenup (and one that stands up in court). I pride myself on providing a professional experience that takes the mystery out of prenups and helps you and your partner lay the foundation for a successful marriage.

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