Unconscionability
A judicial doctrine that allows courts to refuse to enforce contracts that are shockingly unfair. The second pillar (with voluntariness) of prenup invalidation.
A prenup is unconscionable if its terms are so one-sided that enforcing them would shock the conscience. Standard examples: leaving one spouse with literally nothing while the other keeps everything; waivers of all support combined with deep asymmetry in earning capacity; agreements that would render one spouse a public charge.
Most states test unconscionability at the time of signing. A few — notably Massachusetts (DeMatteo) and Ohio (Gross) — also test unconscionability at the time of enforcement, the "two-look" rule. This makes long-marriage prenups in those states more vulnerable if circumstances change dramatically.
Related terms
- Two-Look Rule — The doctrine in some states (notably Massachusetts and Ohio) requiring that a prenup be fair both at signing AND at the time of enforcement.
- Voluntariness — The requirement that both spouses signed the prenup of their own free will, without fraud, duress, coercion, or undue influence.
- Financial Disclosure — The requirement that each spouse provides a complete and specific accounting of their finances — assets, debts, and income — before signing a prenup.
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