• § 403.180 – Separation agreement – Court may find unconscionable.

Case – Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990)

“We note that the legislature, in KRS 403.180(2), has provided that property settlement agreements between divorce contestants will be reviewed by the court at the time of divorce in order to insure that the agreement is not unconscionable. In a property settlement agreement, the parties are dealing at arm’s length in contemplation of imminent divorce and division of property. Parties entering into marriage, on the other hand, are not likely to exercise the same degree of vigilance in protecting their respective interests. Often there will be many years between the execution of an antenuptial agreement and the time of its enforcement. It is, therefore, appropriate that the court review such agreements at the time of termination of the marriage, whether by death or by divorce, to insure that facts and circumstances have not changed since the agreement was executed to such an extent as to render its enforcement unconscionable.”

Case – Edwardson v. Edwardson, 798 S.W.2d 941 (Ky. 1990)

“The first limitation upon parties to an antenuptial agreement is the requirement of full disclosure. Before parties should be bound by agreements which affect their substantial rights upon dissolution of marriage, it should appear that the agreement was free of any material omission or misrepresentation. […] The second limitation to be observed is that the agreement must not be unconscionable at the time enforcement is sought. Regardless of the terms of the agreement and regardless of the subsequent acquisition or loss of assets, at the time enforcement is sought, the court should be satisfied that the agreement is not unconscionable. […] While it may go without saying, we observe that antenuptial agreements may apply only to disposition of property and maintenance. Questions of child support, child custody and visitation are not subject to such agreements; and unless the parties otherwise agree, non-marital property retains its character as such.”