Divorces are hard. They bring a lot of emotional heartache. One such tool that couples can use to attempt to avoid some of this heartache in the unfortunate event of a divorce is what is known as a pre-nuptial agreement. Pre-nuptial agreements determine how property will be divided upon divorce. Pre-nuptial agreements are contracts, and like contracts, certain requirements must be met in order to be considered valid. While pre-nuptial agreements are very fact specific, they are generally considered valid as long as they are entered into freely and without fraud, duress, or misrepresentation, and are not unconscionable. What makes a pre-nuptial agreement unconscionable is left to the discretion of the trial court. What is not unconscionable, as the Court of Appeals made clear in Perrill v. Perrill1, is a mere missing exhibit if that was the only claim for unconscionability.
In Perrill, Husband and Wife signed a pre-nuptial agreement prior to getting married in 2008. Husband had his attorney draft the pre-nuptial agreement, and Wife obtained separate counsel to review the agreement before signing the same. Both parties freely signed the agreement and had their attorneys each review same. Pursuant to the agreement, Wife’s separate property was listed in “Exhibit A,” whereas Husband’s separate property was listed in “Exhibit B.” In 2017, the parties filed for divorce. Upon filing for divorce, Husband produced the pre-nuptial agreement, but Wife’s Exhibit A was missing from the document. At trial, Wife argued that the agreement was unenforceable because of the missing Exhibit A. The Trial Court agreed, and found that the pre-nuptial agreement was unconscionable due to the missing Exhibit A. Husband thereby subsequently appealed the Trial Court’s decision.
On appeal, the Court of Appeals began by looking at the enforceability of the pre-nuptial agreement. The Court noted the general rule that Courts favor pre-nuptial agreements and will liberally construe same to be enforceable. The Court went on to discuss that a pre-nuptial agreement must have “mutual assent or a meeting of the minds on all essential elements or terms in order to form a binding contract.” In the case at hand, the Court did not find an attachment to be an essential term, specifically noting “[w]hile we agree that Wife’s Exhibit A would give more context to the identity of Wife’s premarital property, the identification of the property is not essential.” As such, the Court found the pre-nuptial agreement to be enforceable. The Court also did not find the pre-nuptial agreement to be unconscionable. The Court pointed out the fact that Wife testified she would not contest the validity of the pre-nuptial agreement if Exhibit A had been included. As such, the Court found that the “lack of Exhibit A does not make the Agreement unconscionable.”
This case highlights the importance of the ever-changing legal landscape. Knowing the status of developments in the law is the key to protecting your rights, as well as being an engaged citizenry in our participatory system of government This blog post on a key new case was written by attorneys at Dixon & Moseley, P.C. who handle the full spectrum of domestic issues, ranging from premarital agreements, challenges to premarital agreements to divorces to appeals. This blog is written for educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.