Postnuptial agreement was unenforceable as against public policy requiring the provisions of such agreements affecting children to be in the best interests of the children; agreement gave third party “counselor” sole power to determine custody by giving him sole power to declare if the party seeking a divorce was doing so “reasonably,” counselor promised to act in accordance with Islamic law but had no obligation to act in the best interests of the children, and agreement provided for counselor’s decision to be binding and final, without recourse to review by any court. Postnuptial agreement was unenforceable as substantively unconscionable; agreement provided for mother to forfeit all rights to residence that was the largest marital asset if she “unreasonably” filed for divorce but did not impose similar penalty on father, agreement recited that retitling the residence in both parties’ names was the consideration for mother giving up her right to maintenance even though house was already a marital asset, and vagueness of term “unreasonable divorce” raised possibility that mother would lose her property rights if third-party “counselor” who was empowered to make that determination withheld approval for a divorce for any reason.
Laura W. Morgan is the owner and operator at Family Law Consulting in Charlottesville, Virginia. Laura is available for consultation, brief writing and research on family law issues throughout the country. She can be reached through her website: www.
