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The Concept of Unconscionability

unconscionability, divorce, Kane County family lawyersMost matters of divorce and family law can be resolved by means of an agreement between the parties. Regardless of how complex a particular situation may be, a negotiated solution is generally preferable to drawn-out litigation that could be expensive, time consuming, and very stressful. In order to be recognized, however, as a resolution to the case, the agreement must be approved by a court with jurisdiction over the matter. The court, on its part, will not accept such an agreement if it is determined to be unconscionable to either party. But, what exactly does that mean?

Definition of Unconscionable

Unconscionable is a term, often used in contract law and other areas related to negotiated or signed agreements, to describe a term, provision, or entire document that is oppressive to a party or too one-sided. A precedent in Illinois case law, found in Original Great American Chocolate Chip Cookie Company v. River Valley Cookies, indicates that an unconscionable agreement is one that “no one in his right mind would agree to.” While that case was specifically referring to terms in a business contract, the same principles apply to divorce and family law concerns as well.

Divorce Agreements

Any time a couple presents a negotiated divorce agreement for judicial approval, the court is responsible, by law, to review the included terms. On issues of property and spousal support, the court is also required to abide by the agreement and enter its provisions as part of the divorce judgment unless the agreement is unconscionable.

For example, assume after 20 years of marriage, a husband making $180,000 per year is divorcing his wife who has not worked outside the home since the couple married. The “agreement” presented to the court allocates less than 10 percent of the marital estate to the wife, and absolves the husband of all spousal maintenance responsibilities. The circumstances of such an agreement would be highly suspect, and the court is very likely to find the provisions unconscionable. As a result, the court may require the couple to revise their agreement, possibly through mediation, or enter a more equitable order after an appropriate hearing.

Prenuptial Agreements

The issue of unconscionability can also play a role in the enforcement of prenuptial agreements as well. Under Illinois law, a prenuptial or premarital agreement will not be enforced if the agreement was unconscionable and that one party can show that he or she:

  • Was not provided reasonable disclosure regarding the other party’s finances and debts;
  • Did not waive the rights to receive such information, and;
  • Did not have, or could not reasonably have had, knowledge of the other party’s finances and debts.

If a prenuptial agreement is found to be unconscionable, the entire document can be set aside by the court, and the terms of the agreement would be ignored in proceedings for divorce or property division.

For more information about divorce or prenuptial agreements and how to verify that the terms of your agreement are conscionable, contact an experienced St. Charles family law attorney. At Bochte, Kuzniar & Navigato, our knowledgeable team can help you draft agreements that are fair, equitable and that will withstand virtually any challenge in a court of law. Call 630-377-7770 today for your free initial consultation.



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