New York Divorce and Family Law Blog - JD Supra
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New York Divorce and Family Law Blog
New York Divorce and Family Law Blog What Between Spouses Unconscionable WhatMakes MakesananAgreement Agreement Between Spouses Unconscionable Posted on January January20, 20, 2009 2009 by by Daniel Daniel Clement Clement Posted on Just because an an agreement agreement between between spouses spousessplits splits assets assetsin in an an unequal unequal or or one-sided Just because one-sided basis basis does does not render unconscionable. not render the the agreement agreement unconscionable.
It has has long to to the the policy policy of ofcourts courtsto tohold holdparties partiesto tothe theterms terms of oftheir theiragreements. agreements. An An agreement agreement spouses,which which is is fair fair on its face, will will be between spouses, be enforced enforced even even ifif one one party party received received less less than than one half of the value of the marital assets unless there is proof of fraud, duress, overreaching, or one half of the value of the marital assets unless there is proof of fraud, duress, overreaching, or unconscionability. decided case caseof ofShultz Shultz v. Shultz, Shultz, the In the recently decided the Appellate Appellate Division Divisiondetailed detailedwhat whatmakes makes an an agreement unconscionable: agreement unconscionable: An and not not under under delusion delusion An unconscionable unconscionable bargain bargain is is one one which whichno noperson person in inhis hisor orher hersenses senses and would make and fair fair person would make on on the the one one hand, hand, and and no honest and person would accept accept on on the the other, other, the the inequality being so strong and manifest as to shock the conscience and confound the judgment of inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense. sense. However, However, an an agreement agreement is not not unconscionable unconscionable "merely "merely because, because, in retrospect, some of its provisions were improvident or one-sided" and simply alleging an retrospect, some of its provisions were improvident simply alleging an unequal division of is not not sufficient sufficient to establish unconscionability. division ofassets assets is establish unconscionability.
The reason reason for for this this strict strict standard standard is is obvious-no obvious-no agreement agreementwould wouldbe befree freefrom from attack attackifif itit could, in retrospect, retrospect, be reviewed for fairness fairness
why it found the claims of unconscionability to be lacking. In Shultz, the Court cited two factors why First, the defendant was represented by independentcounsel counselduring duringnegotiations negotiationsinvolving involving the First, the defendant was represented by independent the nuptial agreement. recited that the defendant defendant entered entered into into it parties' post nuptial agreement. Secondly, the the agreement agreement recited "freely, voluntarily and with full knowledge of its consequences. "freely, voluntarily and with full knowledge of its consequences.
The Daniel E. E. Clement The Law LawOffices Offices of of Daniel Clement 420 Lexington Lexington Avenue, Avenue, Suite 420 Suite 2320 2320 New York, New York, New NewYork York 10170 10170 (212) 683-9551 (212) 683-9551 [email protected] [email protected]
New York Divorce and Family Law Blog
New York Divorce and Family Law Blog What Between Spouses Unconscionable WhatMakes MakesananAgreement Agreement Between Spouses Unconscionable Posted on January January20, 20, 2009 2009 by by Daniel Daniel Clement Clement Posted on Just because an an agreement agreement between between spouses spousessplits splits assets assetsin in an an unequal unequal or or one-sided Just because one-sided basis basis does does not render unconscionable. not render the the agreement agreement unconscionable.
It has has long to to the the policy policy of ofcourts courtsto tohold holdparties partiesto tothe theterms terms of oftheir theiragreements. agreements. An An agreement agreement spouses,which which is is fair fair on its face, will will be between spouses, be enforced enforced even even ifif one one party party received received less less than than one half of the value of the marital assets unless there is proof of fraud, duress, overreaching, or one half of the value of the marital assets unless there is proof of fraud, duress, overreaching, or unconscionability. decided case caseof ofShultz Shultz v. Shultz, Shultz, the In the recently decided the Appellate Appellate Division Divisiondetailed detailedwhat whatmakes makes an an agreement unconscionable: agreement unconscionable: An and not not under under delusion delusion An unconscionable unconscionable bargain bargain is is one one which whichno noperson person in inhis hisor orher hersenses senses and would make and fair fair person would make on on the the one one hand, hand, and and no honest and person would accept accept on on the the other, other, the the inequality being so strong and manifest as to shock the conscience and confound the judgment of inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense. sense. However, However, an an agreement agreement is not not unconscionable unconscionable "merely "merely because, because, in retrospect, some of its provisions were improvident or one-sided" and simply alleging an retrospect, some of its provisions were improvident simply alleging an unequal division of is not not sufficient sufficient to establish unconscionability. division ofassets assets is establish unconscionability.
The reason reason for for this this strict strict standard standard is is obvious-no obvious-no agreement agreementwould wouldbe befree freefrom from attack attackifif itit could, in retrospect, retrospect, be reviewed for fairness fairness
why it found the claims of unconscionability to be lacking. In Shultz, the Court cited two factors why First, the defendant was represented by independentcounsel counselduring duringnegotiations negotiationsinvolving involving the First, the defendant was represented by independent the nuptial agreement. recited that the defendant defendant entered entered into into it parties' post nuptial agreement. Secondly, the the agreement agreement recited "freely, voluntarily and with full knowledge of its consequences. "freely, voluntarily and with full knowledge of its consequences.
The Daniel E. E. Clement The Law LawOffices Offices of of Daniel Clement 420 Lexington Lexington Avenue, Avenue, Suite 420 Suite 2320 2320 New York, New York, New NewYork York 10170 10170 (212) 683-9551 (212) 683-9551 [email protected] [email protected]
