734-359-7018
Now Accepting New Clients!
Blog

DIVORCE 10: For an agreement to be unconscionable, there must be both procedural unconscionability and substantive unconscionability.

Plaintiff and defendant were married in 2011, and separated on December 23, 2016. The parties do not have children in common, but defendant has a minor child from a previous marriage. On December 23, 2016, the parties signed a handwritten property settlement agreement, and on December 27, 2016, the parties executed a typed version of the property settlement agreement. Plaintiff filed a complaint for divorce on December 28, 2016, followed by a motion for entry of proofs and judgment on February 9, 2017, after defendant had signed a proposed consent judgment of divorce the previous day, which incorporated the settlement agreement.

Despite having signed the proposed divorce judgment, defendant filed an answer to the divorce complaint on February 28, 2017, and on March 2, 2017, she filed a response to plaintiff’s motion for entry of proofs and judgment, along with a motion to restore her possession of the marital home. Defendant claimed arguments premised on unconscionability.

In order for a court to determine that an agreement was unconscionable, there must be both procedural unconscionability and substantive unconscionability.  Procedural unconscionability arises when the weaker party to a settlement agreement had no realistic alternative but to accept the agreement.  Substantive unconscionability exists where the challenged term is not substantively reasonable.  The challenged term must be more than merely disadvantageous; its inequity must be so extreme as to shock the conscience.

In this case, the court ruled that the settlement agreement was not procedurally unconscionable because, given the circumstances, defendant was not in a situation where she had no realistic alternative to the agreement. And the court additionally ruled that even had the defendant demonstrated procedural unconscionability, defendant’s unconscionability claim would fail because the court is not satisfied that it was presented with sufficient evidence to rule whether substantive unconscionability is present.

First, with regard to procedural unconscionability, defendant had the realistic alternative of litigating the divorce in an attempt to receive an award that included division of the company. And considering the economic circumstances of the parties, defendant would likely have been entitled to an award of attorney fees to assist her in covering the expenses of the action.

There was also significant evidence that defendant did not sign the agreement on December 27, 2016, out of duress, economic or otherwise.  The amicable text messages and communications between defendant and plaintiff covering the period from December 23 to December 27, 2016, the testimony of the notary public, and the evidence showing the child having interactions with plaintiff, absent intervention or concern by defendant, all reflected that defendant was freely and willingly entering into the agreement on December 27, 2016. The trial court did not err in finding that defendant was not coerced into signing the settlement agreement and that she was not acting under duress.

Second, with respect to substantive unconscionability, the trial court was absolutely correct in its determination that it was not presented with adequate evidence to find that the settlement agreement was unconscionable.  The record lacked in evidence concerning the value of the Plaintiff’s company and the extent of its debt.

Defendant di not shown that the settlement agreement shocks the conscience. Reversal is unwarranted.

Were you just served with divorce papers? Do you believe that divorce is the only option left for your marriage?  At the Plymouth and Ann Arbor law firm of Aldrich Legal Services, our attorneys have the skill and experience you need to address all family law issues that may arise during your divorce.

Contact Aldrich Legal Services

Do I Have To Go To Court If I Get A Divorce?

If you’re contemplating a divorce in Michigan, you probably have a lot of questions. One of the most intimidating aspects of getting a divorce in Michigan or anywhere else is the idea of having to appear in court. The laws for getting a...

Do I Need A Prenuptial Agreement?

A prenuptial agreement is not only for the wealthy people in society, like Hollywood celebrities and the like but also for any couple that brings personal assets, property, debts or children from a former relationship into the marriage. This...

PROBATE 19: Respondent argues she did not receive notice of hearing until five days before.

Respondent argues that she was denied her right to due process of law because she did not receive notice of the hearing until five days before it took place. Respondent argues that the five-day notice of hearing violated her right to due process. Due process generally requires that notice be reasonably calculated to apprise interested parties of the action and to provide them an opportunity to be heard.

WILLS/TRUSTS 11: Allegations that a trustee violated his fiduciary duties.

MCL 700.7803 states that a trustee shall act as would a prudent person in dealing with the property of another, including following the standards of the Michigan prudent investor rule. If the trustee has special skills or is named trustee on the basis of representation of special skills or expertise, the trustee is under a duty to use those skills. MCL 700.7810 states that a trustee shall take reasonable steps to take control of and protect the trust property.

How Is Probation Violated?

If you are on probation, it means you have the judge's trust and have been allowed some level of freedom. Now you must work on ensuring you don’t violate your probation. You will need to abide by every term that the criminal court judge...

REAL ESTATE 25: Foreclosure and sheriff’s sale, redemption period expired.

In lieu of an answer, defendants filed a motion for summary disposition under MCR 2.116(C)(8) and (C)(10), arguing essentially that plaintiff lacked standing to bring claims related to the Property because plaintiff’s legal interest in the Property was extinguished through properly conducted foreclosure proceedings and the redemption period had expired and that none of plaintiff’s claims had legal merit.

I Was Arrested- Can I Question The Cop?

There are things that the police wouldn’t want people to know, and this is for the apparent reason that their investigations wouldn’t yield many convictions as they would like. The role of a police officer is to make arrests followed by...

REAL ESTATE 24: Court dismissed defendant’s counterclaim for failure to join third party.

Defendants’ counter-complaint sought a declaration, among other things, that defendants had acquired a legal right to use the Drive as a means to access their property. But defendants did not add the LLC, the owner of the Drive, as a party to their suit. Consequently, the trial court dismissed defendant’s counterclaim for easement rights because of the failure to join LLC—a necessary party.

Can Your Marriage Be Annulled?

An annulment officially erases a marriage. In Michigan, it is harder to get your marriage annulled than it is to get a divorce. The annulment procedure is very similar to the divorce process, and you need filing of the right documents and service...

Estate Planning- What Errors You Should Avoid?

Estate planning is a task financial experts say you should never neglect. Despite this, according to a 2017 survey, 6 in 10 Americans don't have a will. While not doing any estate planning is the biggest mistake of all, here are three...

REAL ESTATE 22: Court found denial of rezoning from multiple-family to commercial invalid.

Plaintiff brought suit, alleging that the rezoning denial deprived it of its constitutional rights to equal protection and substantive due process. The parties filed competing motions for summary disposition. The briefs largely focused on whether defendant had treated the Property differently from other properties in the downtown area and whether it had legitimate reasons for doing so.

FAMILY LAW 24: Plaintiff-mother denied her motion to change parenting time.

The Child Custody Act of 1970, MCL 722.21 authorizes a trial court to issue custody and parenting-time orders that are in the child’s best interests. A showing of proper cause or change of circumstances is required to modify a parenting-time order. The movant has the burden of proving by a preponderance of the evidence that either proper cause or a change of circumstances exists.

Custody of Pets In A Divorce

Divorce comes with confusion and mixed emotions. The question of who gets custody of pets may be even more confusing- especially since pets can begin to feel like family. Courts often look out for the interest of human children and allow for shared...

PROBATE 14: Trial court found involuntary mental health treatment appropriate.

To receive involuntary mental health treatment under the Mental Health Code, MCL 330.1001, a petitioner is required to establish that respondent has a mental illness and who as a result of that mental illness can reasonably be expected within the near future to intentionally or unintentionally seriously physically injure himself, herself, or another individual, and who has engaged in an act or acts or made significant threats that are substantially supportive of the expectation.

BUSINESS LAW 6: Membership dispute in a LLC.

Based on the testimony, the trial court ordered the dissolution and liquidation of the assets of the LLC. The trial court also directed the LLC to make a distribution to plaintiff, which represented the 49% share owed to him to compensate for defendant’s distribution.

WILLS/TRUSTS 8: What makes a will irrevocable?

The parties agreed that the decedent properly executed the 2005 will with his wife, but the probate court was asked to rule on whether the terms of that will made it irrevocable, which would mean that the decedent could not change his estate plan by way of the 2015 will.

Windows Tint Laws- Is Window Tinting Legal?

Some of the reasons why people tint their car windows include to enhance safety, achieve a good level of privacy and to prevent their skin from the damaging effects of UV rays. Despite these benefits, window tinting can affect a driver’s...

Don't let a bad decision, unfair contract, or a messy divorce get in the way of a promising future!
Contact the experienced team at Aldrich Legal Services today to schedule your free initial
consultation
and secure reliable and trustworthy representation today!
Get the Help You Need From a Team You Can Truly Count On: (734) 404-3000
734-237-6482
734-366-4405