Kentucky PreNup: Waiver Of Maintenance Unconscionable At Time Of Enforcement

After the Kentucky Court of Appeals decided Blue v. Blue, 60 S.W.3d 575 (Ky. App. 2001), we wondered whether there were any circumstances that could cause an ante-nuptial agreement to be declared unconsionable. Now we have one. In an opinion rendered September 21, 2006, Lane v. Lane, the Kentucky Supreme Court reversed the Court of Appeals and affirmed the trial court finding that the waiver of maintenance was unconscionable at the time the agreement was sought to be enforced. The young couple were ages 26 and 29 at marriage, when she earned $19,00 per year and he earned $166,000 per year. By the time the divorce petition was filed in 2002, the wife was a stay-at-home mom with two children and the husband earned $1million per year.

The opinion by Chief Justice Lambert noted,
“The more one sided an agreement appears at the time it is made, the more likely courts are to invalidate the agreement at the time enforcement is sought. Bare-knuckling bargaining is not an appropriate practice. As this was a first marriage between younger persons, it is curious that these parties even wanted an ante-nuptial agreement. Their situation differed vastly from the customary and proper ante-nuptial agreement circumstances where parties desire to preserve their assets for their children and grandchildren. But they made their agreement and it will be enforced, subject to judicial scrutiny for unconscionability.”

An attorney fee award of $59,271.08 was affirmed, and that issue was remanded to the trial court for consideration of whether additional attorney’s fees and costs incurred during the appellate process should be granted.

The concurring opinion by Justice Graves, in which Justices Roach and Wintersheimer joined, noted:
“The ante-nuptial agreement in this case is fundamentally unfair in large part because it accords almost no consideration for the wife’s contributions as a homemaker in this marriage. Were we to hold as the dissent suggests it would be foolish, indeed, to continue investing in a marriage through the role of a homemaker as such a contribution would be accorded diminished status under the laws of Kentucky and hence, this court would be contributing to the feminization of poverty.”

The dissent by Justice McAnulty includes the following:
“The highest number that Paula agrees that she received in the trial court’s division of marital property is $233,593.12. I do not disagree that David is in a significantly better financial position with his monthly income, as found by the trial court, of $95,728.33, but I cannot agree with Paula that the amount she received will not support her while she sensibly and responsibly pursues her career interests. Nor can I agree that affluent lifestyle as opposed to a comfortable lifestyle (which I believe Paula and her children can enjoy with her property award plus $3,000 per month child support) should necessarily render the maintenance provision unconscionable.”

Here is the link to the opinion:

Thanks to Kentucky Cases for the prompt posting of the Supreme Court minutes from which we could easily link to the case.