Unconscionable Divorce Agreement

by Beverly Bird

Most states prefer that spouses negotiate a marital settlement agreement on their own when they divorce, rather than ask the court to decide issues at trial. These agreements must usually be submitted to a judge for approval before they are incorporated into decrees or judgments. A judge won't approve your agreement if it's unconscionable. If you don't file for divorce, but just remain separated under your agreement's terms, it may not be enforceable either.

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The Agreement is Bizarre

An unconscionable agreement is one that is so grossly inequitable, the court would have to wonder why any spouse in her right mind would sign it. For example, you might want your marriage over with so badly that you agree to give 100 percent of all marital property to your spouse, plus all your separate premarital property as well. Not only would the judge wonder why you would do such a thing, but he would also probably wonder why your spouse would accept this bounty. New York defines an unconscionable agreement as one that nobody of sound mind or with any common sense would enter into. Colorado law says it is one that is grossly unfair.

Unequal Property Division

If you and your spouse negotiate an unequal property division, this doesn't necessarily make your agreement unconscionable. No law requires you to divide everything 50-50, even in community property states where the court would distribute marital property this way if you went to trial. If your agreement defies sense, however, you may have a problem.