An Illinois appellate court affirmed a trial court ruling that a postnuptial agreement was unenforceable as against public policy where the agreement gave a third party “counselor” sole power to determine custody and other issues including property and support. In the words of the appellate court, the agreement was so one-sided and “draconian” that it was substantively unconscionable. In the parties' agreement, the counselor was given sole authority to declare that the reasons for filing for divorce were not "reasonable." If the reasons were "unreasonable," then the “counselor” had sole power to determine custody of the children and to deprive the wife of her property rights set out in the agreement. The vagueness of the term “unreasonable divorce” raised a possibility that the mother would lose her property rights if the third-party “counselor” who was empowered to make that determination withheld approval for a divorce for any reason.
Although the counselor promised to act in accordance with Islamic law, he had no obligation to act in the best interests of the children. The agreement, apparently prepared by the counselor's son (a lawyer), contained provisions that
(a) the counselor's decision was to be binding and final;
(b) neither party had a right to review by any court;
(c) both parties had consulted with counsel prior to executing the agreement; (the mother testified that, in fact, she'd not consulted with counsel--surprise, surprise)
The trial court held that the agreement was unenforceable and was substantively unconscionable. One of the draconian provisions in the agreement provided for mother to forfeit all rights to custody of the children (even though she'd been the primary caretaker during the children's entire lives) and to forfiet all rights to the marital residence (the largest marital asset), if she “unreasonably” filed for divorce. However, the agreement did not impose a similar penalty upon the father. Another objectionable provision stated that retitling the residence in both parties' names was the consideration for mother giving up her right to maintenance--but the house was already a marital asset.
The trial court held that the agreement violated public policy with respect to the arrangements regarding the minor children and invalidated it. The appellate court affirmed, stating:
It is the public policy of this state that courts have an independent duty to ensure that the arrangements made by divorcing parents that directly affect their children–those relating to
custody, child support, and visitation–are in the best interest of the children. Parents “are not at liberty to make agreements which affect the interests of their children without obtaining the approval of the court.” In re Marriage of Ingram, 259 Ill. App. 3d 685, 689 (1994); see also Blisset, 123 Ill. 2d at 168 (“Parties may not bargain away their children’s interests.”). In addition, parties may not make the child-related terms of their agreements nonmodifiable.
At the time of trial--a five day trial after the parties had had a GAL appointed, a child custody evaluation, and the father had had an independent psychologist examine and testify that the custody evaluator's methology was inform and the court should ignore the evaluator's recommendation that the mother should have sole custody--the father, a professional who has degrees in commerce and information technology management from institutions in India, had most recently held a position in his field was in Saudi Arabia as an information technology project manager was working as a farmer earning about $150/week. One has to wonder how this litigation was financed!
The father objected to the trial court awarding him the bulk of the marital debt, the largest of which was allegedly about $44,000 allegedly owed to his brother and his brother's wife. The marital dwelling was ordered sold with 65% of the net sale proceeds awarded to the mother. The trial court reserved spousal support, preserving a future award ot the mother. All was affirmed on appeal.
The case is: In re Marriage of Iqbal, 2014 IL App (2d) 131306
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