POSTNUPTIAL AGREEMENTS NEED TO BE ENFORCEABLE IN COURT

Family treePeople are entering into more and more prenuptial agreements, and that is good, but people are not aware so much of a postnuptial.  Post nups are can be just as important as premarital agreements.  If one spouse is about to open up their own business, the other business partners might require the post nup.  Sometimes a postnup is valuable when a couple agrees to purchase property together, and they are using their non-marital monies for the purchase.  It is important however that you utilize the help of a knowledgeable family law lawyer however, or the whole point of entering into a prenuptial is wasted.  For instance, one cannot agree ahead of time in their postnup  that “one won’t pay child support,” or “one won’t seek visitation with the children.”  In a recent Appellate decision, potential parents agreed to have a counselor determine who will get custody of the children.  An agreement has to be within the law, and when it is not, the postnuptial agreement will not be enforceable.

The case I refer to is In Re the Marriage of Iqbal.  In November 2006, Uzma and the parties’ children went to stay in a women’s shelter. At the parties’ request, Fisal  Hammouda, a businessman who also served as a marriage counselor within the Muslim community, acted as a mediator. Hammouda spoke several times with both parties and ultimately put together the Postnuptial agreement (“PNA”).

The PNA began by reciting that the parties wished to define their rights to their separate

and joint property, “with the express understanding that neither party wishes to obtain a

divorce or legal separation.” The parties then designated Hammouda as their “Religious and

Marital Counselor and Arbiter of their Marital Affairs” and agreed that “his authorization and

approval was required for any major decisions, including but not limited to financial matters, matters of the children, work and travel, and any contemplated divorce or separation.”

 

The parties agreed to 34 numbered paragraphs concerning a variety of topics, many of which

concerned daily life (e.g., requiring the parties to speak politely to and about each other, and to

allow free communication with various relatives) or certain household arrangements (e.g.,

providing Uzma with a monthly allowance and a maid, and enabling her to travel with the

children). However, several clauses placed greater obligations and restrictions on the parties:

 

“1.    Husband shall name Wife as a tenant by the entirety of the property located at

925 Iroquois Avenue, Naperville, which was previously owned as Husband’s separate

property.

 

2.   Counselor will be an additional signatory on the property, and his signature is required for any transfer of rights in the property to be valid and binding, and no transfer may occur without Counselor’s signature, and the signature of Husband and/or Wife.

 

3.   It is further agreed, that Wife’s share in said home will vest at twenty-five

(25) percent per year, in her half of the property. Wife will be fully vested in her share

of the home after four (4) years of marriage. Should Wife unreasonably file for divorce

(without Counselor’s written approval), she will forfeit her and her heirs and/or

assigns[’] right to any share of the home. Should Wife reasonably file for divorce (with

Counselor’s written approval) she will be entitled to her vested share in the home at the

above rate.

 

4. Husband and Wife agree to base their life and marriage on the Holy Quran and

Sunnah, as practiced in the Islamic religion.

 

5. Husband and Wife agree to make a good faith and sincere effort to make their

marriage work and last their entire lives. Husband and Wife further agree that an

unreasonable divorce is not in the best interests of their children, and their continued

marriage is in the best interests of their children.

 

6. Husband and Wife agree that an unreasonable divorce (without Counselor’s

express written approval) is a violation and contrary to the purposes and intents of

this agreement, and an unreasonable divorce sought by either party will forfeit their

rights to custody of the children and any rights conveyed in this agreement. If either

party seeks an unreasonable divorce, they hereby agree to surrender full custody

rights to the other, and agree to only reasonable visitation rights to the Children.

 

And the agreement went on and on, essentially giving the counselor sole discretion on the division of their estate and the children.  When the wife filed for divorce, the husband countered by stating that she should receive nothing, as she did not obtain written authorization from the counselor before filing the divorce.

The trial court also found the PNA substantively unconscionable because it was one-sided,

and “draconian” in that it discouraged the parties from violating any of the terms by threatening the loss of custody of the children as well as the forfeiture of property rights. Finally, the trial court found that the term “unreasonable divorce” was not defined within the PNA and instead was left solely to Hammouda’s interpretation.

The Appellate Court agreed with the trial court and stated that the PNA was unenforceable in its entirety (including the severability clause) as it was vague, ambiguous, and substantively

unconscionable.

 

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