Indiana

In this case, there is no evidence of fraud, duress, misrepresentation, or unconscionability at the time the contract was made. Leslie brought most of the property to the marriage; Charles brought few personal assets and a modest income from more than 35 years of work at the Delco Remy factory. Both were looking to protect their assets for themselves and for their heirs. Thus, the couple entered into an antenuptial agreement which would provide this protection. Even though at the time of marriage one spouse was close to retirement age and the other spouse had recently undergone several surgeries, the agreement was silent regarding support in the event that one spouse would become disabled. Given these circumstances, if such support had been important to either of the parties, surely it would have been included in the agreement. Rather, the agreement specifically stated that if the parties separated, neither would be entitled to support.

As discussed above, the trial court found that Leslie has assets worth between $65,000 and $85,000. However, due to her illness and her inability to work, she is not capable of supporting herself. Thus, the trial court found that the agreement is "not binding" with regard to maintenance, and awarded Leslie $225/mo. The Court of Appeals agreed, finding that "[a]n antenuptial provision limiting or eliminating spousal maintenance is unconscionable and will not be enforced when it would deprive a spouse of reasonable support that he or she is otherwise unable to secure." Rider, 648 N.E.2d at 665.

However, both the trial court and the Court of Appeals failed to consider the relative financial positions of the spouses. Unconscionability involves a gross disparity. See Justus, 581 N.E.2d at 1272. Thus, while an antenuptial agreement which would force one spouse onto public assistance may be unconscionable, we believe that a finding of unconscionability requires a comparison of the situations of the two parties. At the time of divorce, Leslie's assets were worth at least $65,000, and she received $645/mo. child support from a prior spouse. Charles had personal assets which were worth only several thousand dollars and a pension which paid a gross $1,247/mo. Enforcement of the antenuptial agreement would leave one spouse with virtually all of the real and personal property, while leaving the other spouse with a modest income stream. This is what the parties brought into their short marriage, and this is what they sought to protect. The alternative, as ordered by the trial court, would provide Leslie with almost all of the property and a significant percentage of the income stream. Given Charles' limited financial position, we do not find enforcement of the parties' own agreement to be unconscionable.

We agree with the trial judge that Leslie should continue to pursue her claims for disability and social security. While we sympathize with her, and we understand that enforcement of this contract eventually may force her to sell her home, we cannot find enforcement of this antenuptial agreement to be unconscionable. Finally, we note that this case does not involve a situation where, following divorce, one spouse is left with considerable assets while the other spouse is left virtually penniless, with no means of support. 165 Rather, in this case, one party is left with a modest income stream, while the other party is left with a modest amount of real and personal property.