Section 4.15 Conscionability—Procedural and Substantive

• Library: Family Law Deskbook and 2014 Supp

6. (§4.15) Conscionability—Procedural and Substantive

The determination of conscionability has become a requisite for validating antenuptial and postnuptial agreements. In Ferry v. Ferry, 586 S.W.2d 782 (Mo. App. W.D. 1979), the Western District held that antenuptial agreements are neither contrary to public policy nor precluded by the dissolution of marriage law. The Ferry decision cited Wilson v. Wilson, 354 S.W.2d 532 (Mo. App. S.D. 1962), a case that predated adoption of the dissolution of marriage law and set forth the “fairness” standard applicable for reviewing antenuptial agreements before enactment of the dissolution of marriage law. Although Ferry defined the term “conscionability” as used under the dissolution of marriage law, the holding to invalidate the agreement in that case was not based on the ground of unconscionability.

Ferry defines conscionability as used in commercial
law, i.e., “protection against onesidedness, oppression or unfair surprise.” Ferry, 586 S.W.2d at 786. Nedblake v. Nedblake, 682 S.W.2d 852, 854 (Mo. App. W.D. 1984), makes only a passing reference to this requirement by citing Ferry. The Eastern District in McMullin v. McMullin,
926 S.W.2d 108 (Mo. App. E.D. 1996), noted that the trial court found the antenuptial agreement unconscionable because it attempted to bar the wife from her rights to marital property. The husband apparently conceded that the attempt to have his wife waive her interest in all marital property was unenforceable. Thus, the agreement was so one-sided that it was unconscionable. Id.

In In re Marriage of Thomas, 199 S.W.3d 847 (Mo. App. S.D. 2006), the court noted that an agreement is unconscionable when ‘“the inequality is so strong, gross, and manifest that it must be impossible to state it to one with common sense without producing an exclamation at the inequality of it.’” Id. at 852 (quoting McMullin, 926 S.W.2d at 110).

The court began by noting that unconscionability has been found when the agreement ‘“attempts to totally take from one of the spouses his or her presumed right to marital property.’” Marriage of Thomas, 199 S.W.3d
at 860 (quoting Miles v. Werle, 977 S.W.2d 297, 303
(Mo. App. W.D. 1998)). That is, Miles suggests that total divestiture of those rights is sufficient to constitute unconscionability, not that it is necessary for such a finding. But the court in Marriage of Thomas stated that, because the agreement at issue did not purport to totally divest either spouse of the right to...