Procedural Unconscionability

Also known as bargaining unconscionability, it is one of two ways to set aside a prenuptial agreement for being unconscionable. The Arizona Supreme Court wrote that “Procedural or process unconscionability is concerned with … things that mean bargaining did not proceed as it should.” Maxwell v. Fidelity Fin. Svc, Inc., 184 Ariz. 82 (1995). The Arizona Supreme Coourt in that same case cited to a law professor who described procedural unconscionability as “bargaining naughtiness.” Procedural unconscionability occurs when there is a sharp imbalance in the negotiating power between the parties, e.g., one spouse is highly educated, and the other spouse is a high-school drop out. According to the case Fadlon v. Cleverley, the relevant evidence of bargaining unconscionability includes the lack of an attorney, the age, education, intelligence, business acumen and experience” of the parties, “relative bargaining power, who drafted the contract, whether the terms were explained to the weaker party, and whether alterations in the printed terms were possible.” As to the last one, consider a scenraio where Spouse A has a prenup drafted up and sends Spouse B to an attorney to review it but with the instructions that nothing can be changed, that could serve as grounds for setting aside the premarital agreement in the event of a divorce.