Can a court change the equalization payment if it would be unconscionable?
Yes, but only in narrow circumstances. Section 5(6) of the Family Law Act gives a court the power to order an unequal division of net family property if the standard equalization result would be unconscionable. This is a high bar — courts have emphasized that "unconscionable" means shockingly unfair, not merely unfair or unexpected.
Factors the court may consider include: a spouse's deliberate or reckless depletion of net family property, incurring debts recklessly, a very short marriage where equalization would produce a windfall, an agreement (other than a valid domestic contract) between the parties, or a spouse's bad faith in the circumstances. A difference in financial sophistication alone is generally not enough.
Because "unconscionability" is strictly interpreted, winning such a claim is not easy. If you believe the standard formula produces a deeply unfair result in your situation, discuss the specific facts with a family law lawyer to assess whether a claim for unequal division is realistic.
Key takeaways
- Courts can order unequal division only if the result would be unconscionable — a very high bar
- Deliberate waste of assets, reckless debt, or very short marriages may support a claim
- General unfairness or a better deal for one spouse is not enough
- Section 5(6) claims require careful legal analysis of your specific facts