Hudson v. Hudson (Lawyers Weekly No. 011-036-14, 9 pp.) (Paul Short Jr., J.) Appealed from Horry County Family Court (Timothy Pogue, J.) S.C. App.
Holding: Despite the differences in the parties’ estates and the fact that, for legal advice on the prenuptial agreement, the plaintiff-husband sent his bride-to-be to his former colleague, an attorney who did not explain that she was waiving alimony and other rights, since the prenuptial agreement leaves the defendant-wife in basically the same circumstances she was in upon entering the marriage, it is not unconscionable.
We reverse the family court’s equitable distribution and attorney’s fee awards.
“Unconscionability” is the absence of meaningful choice on the part of one party due to one-sided contract provisions together with terms that are so oppressive that no reasonable person would make them and no fair and honest person would accept them. Courts are limited to considering the facts and circumstances that exist at the time of the execution of the contract when determining unconscionability.
Both parties waived interest in the other’s property. There was no clause providing separate treatment for property acquired during the marriage. We find the agreement’s terms were not so one-sided or oppressive that no reasonable person would make them and no fair and honest person would accept them; therefore, the agreement was not unconscionable as to equitable division.
The wife argues the high pressure exerted on her due to the impending wedding and the parties’ unequal bargaining power rendered the agreement unconscionable. We disagree.
The wife testified she would have signed the agreement regardless of its fairness, so long as it was not fraudulent. Although we have concern regarding the husband’s referral of the wife to a friend for legal counsel, we find the wife willingly agreed to use Steven Solomon as her counsel, and she knew of his failure to adequately advise her when she signed the agreement. The wife admitted Solomon did not discuss the details of the agreement and merely told her the husband was a good guy. Additionally, her psychologist testified the wife was capable at the time she signed the agreement. We find the circumstances when the agreement was signed did not render the agreement unconscionable.
The wife’s circumstances in this case have not changed since the time the parties executed the agreement so as to make the agreement unfair or unreasonable. The wife entered the marriage with insignificant assets and was unemployed. At the time of the separation, the wife was employed and had substantially the same assets as when she entered the marriage, although she had a debt of $16,783 from a loss incurred due to the sale of her own business. We find circumstances since the execution of the agreement have not changed so as to make enforcement of the agreement unfair or unreasonable.
The husband’s failure to disclose his flea market and franchise fee agreement from his financial declaration at the time of the execution of the agreement was not substantially significant, and it did not affect the unconscionability of the agreement.
We find the agreement itself is not unconscionable, and neither the attendant nor subsequent circumstances equated to unconscionability or rendered the agreement unfair or unreasonable. Thus, we reverse the equitable distribution award to the wife.
In light of our finding that the agreement was not unconscionable, we reverse the award of attorney’s fees and costs to the wife.
Reversed.