Premarital agreement was unconscionable

Where the parties’ premarital agreement recited there had been full disclosure of their assets, when, in fact, the disclosure documents were left blank, husband cannot enforce the agreement because it is unconscionable. Husband’s undisclosed assets were more than $10 million and the agreement foreclosed any possibility of wife sharing those assets.

Overview

The agreement provided that “husband and wife would separately retain their individual property, including assets or earnings acquired during the marriage. It stated, ‘[t]he separate property will be free and clear of any claim of the other party, upon separation or otherwise, without regard to any time or effort invested during the course of the marriage in the maintenance, management, or improvement of the separate property.’

“Both parties waived any rights to the other’s assets in the event of divorce or death. It did not allow changes or modifications in the event of changed circumstances. All separate property, ‘whether now owned or hereafter acquired,’ would remain ‘free from any claim that may be made by the other by reason of their marriage and with the same effect as if no marriage had been solemnized between them.’”

The agreement also recited that each party had fully disclosed their assets, when, in fact, the disclosure documents were left blank.

Wife sued for divorce and sought to have the agreement declared unenforceable because there was no disclosure of assets. “She learned in 2015, while helping to prepare a loan application for a home equity line of credit on their home, that husband’s assets exceeded ten million dollars. Husband acknowledged that he did not discuss his assets with wife before they signed the Agreement.”

The trial court declared the agreement unenforceable. Husband appealed.

‘Gross disparity’

“Code § 20-151(A) provides:

“‘A premarital agreement is not enforceable if the person against whom enforcement is sought proves that:

“‘1. That person did not execute the agreement voluntarily; or

“‘2. The agreement was unconscionable when it was executed and, before execution of the agreement, that person (i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; and (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.’ …

“[T]he Agreement, if enforced, would entail a ‘gross disparity’ in the division of assets. … As the circuit court held, ‘nothing in [the Agreement] provided for [wife].’ It made no allowances for, and in fact expressly prohibited her from receiving any benefit from, the increased value of husband’s assets attributable to her efforts working for husband’s business.

“She could not, under the Agreement, receive any portion of assets earned or purchased with income from those businesses, as it permitted husband to title everything in his name ‘free from any claim that may be made by the other by reason of their marriage and with the same effect as if no marriage had been solemnized between them.’”

Overreaching

“There also were ‘overreaching or oppressive influences’ at play when wife signed it. … Husband waited until the last moment – the afternoon before their wedding day – to present wife with the Agreement, making the wedding contingent upon her signing it and providing no time for her to consult an attorney.

“In addition, this all took place after wife, going on husband’s assurances that he would take care of her, sold her home and left her career in Arkansas and had become dependent on husband and his businesses for her livelihood.

“As such, because the evidence supports the findings that a ‘gross disparity existed in the division of assets’ and that there were ‘overreaching or oppressive influences’ at play, … the circuit court did not err in finding the Agreement unconscionable.”

No disclosure

“Furthermore, there was no ‘fair and reasonable disclosure’ of assets before the parties signed the Agreement. Although the Agreement sets forth that there was ‘full and complete’ financial disclosure between husband and wife and that each party prepared a written summary of their assets, the totality of the Agreement facially contradicts those assertions.

“The purported disclosures referenced, Exhibits A and B, listed no assets for either party – they were blank save for the titles indicating that they were the exhibits listing the ‘assets of [husband]’ and ‘assets of [wife].’

“The circuit court expressly found wife’s testimony, including that she was unaware of the extent of husband’s assets when she signed the Agreement, most credible. Furthermore, husband admitted before the circuit court that he did not discuss his assets with wife before they signed the Agreement, emphasizing that she should have been able to make inferences based on her work for his property management business.

“Wife’s general awareness of some of husband’s assets does not amount to ‘fair and reasonable disclosure’ under Code § 20-151(A), much less the ‘full and complete’ financial disclosure the Agreement sets forth. Accordingly, there was no ‘fair and reasonable disclosure of the property or financial obligations of the other party.’”

Affirmed.

Remillard v. Remillard, Record No. 1063-21-2, Sept. 6, 2022, 2022. CAV (AtLee Jr.) From the From the Circuit Court of Charles City County. Richard G. Collins for appellant. Brandy M. Poss for appellee. VLW 022-7-372, 8 pp.