“Because of the nature of the marital relationship, the spouses to a postnuptial agreement may not be as cautious in contracting with one another as they would be with prospective spouses, and they are certainly less cautious than they would be with an ordinary contracting party. With lessened caution comes greater potential for one spouse to take advantage of the other. This leads us to conclude that postnuptial agreements require stricter scrutiny than prenuptial agreements. In applying special scrutiny, a court may enforce a postnuptial agreement only if it complies with applicable contract principles, and the terms of the agreement are both fair and equitable at the time of execution and not unconscionable at the time of dissolution.”

The Court then defined what constitutes a fair and equitable postnuptial agreement:

[T]he terms of a postnuptial agreement are fair and equitable at the time of execution if the agreement is made voluntarily, and without any undue influence, fraud, coercion, duress or similar defect. Moreover, each spouse must be given full, fair and reasonable disclosure of the amount, character and value of property, both jointly and separately held, and all of the financial obligations and income of the other spouse. This mandatory disclosure requirement is a result of the deeply personal marital relationship.”

The Court also directed how a court shall determine the validity of a postnuptial agreement and how to determine if it is fair and equitable:

[I]n determining whether a particular postnuptial agreement is fair and equitable at the time of execution, a court should consider the totality of the circumstances surrounding execution. A court may consider various factors, including ‘‘the nature and complexity of the agreement’s terms, the extent of and disparity in assets brought to the marriage by each spouse, the parties’ respective age, sophistication, education, employment, experience, prior marriages, or other traits potentially affecting the ability to read and understand an agreement’s provisions, and the amount of time available to each spouse to reflect upon the agreement after first seeing its specific terms . . . [and] access to independent counsel prior to consenting to the contract terms.’’

And how to determine if a postnuptial agreement is unconscionable at the time of dissolution of the marriage:

“With regard to the determination of whether a postnuptial agreement is unconscionable at the time of dissolution, ‘‘[i]t is well established that [t]he question of unconscionability is a matter of law to be decided by the court based on all the facts and circumstances of the case.’’ (Internal quotation marks omitted.) Crews v. Crews, supra, 295 Conn. 163. ‘‘The determination of unconscionability is to be made on a case-by-case basis, taking into account all of the relevant facts and circumstances.’’ Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 89, 612 A.2d 1130 (1992). Unfairness or inequality alone does not render a postnuptial agreement unconscionable; spouses may agree on an unequal distribution of assets at dissolution. ‘‘[T]he mere fact that hindsight may indicate the provisions of the agreement were improvident does not render the agreement unconscionable.’’ (Internal quotation marks omitted.) Lipic v. Lipic, 103 S.W.3d 144, 150 (Mo. App. 2003). Instead, the question of whether enforcement of an agreement would be unconscionable is analogous to determining whether enforcement of an agreement would work an injustice. Crews v. Crews, supra, 295 Conn. 163. Marriage, by its very nature, is subject to unforeseeable developments, and no agreement can possibly anticipate all future events. Unforeseen changes in the relationship, such as having a child, loss of employment or moving to another state, may render enforcement of the agreement unconscionable.

This is an important case of first impression that now sets the standard for postnuptial agreements. If you and your spouse are considering a postnup, you should contact a licensed attorney.

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.

copyright 2011 Irene C. Olszewski

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The speaker system got a good workout during the holiday season.  I’m a fan of holiday music during the month of December (not before Halloween as retail merchants seem to think).  My daily December routine began with tuning the office radio to the station that played non-stop holiday songs.  For the most part, I enjoyed the entertainment.

I said, for the most part.  I’m about to go off on a tangent now, so try to keep up.  If I had to hear “Santa Baby” one more time, I think I might have hung myself.  It’s not that the music is annoying; actually, it’s got a pretty catchy melody.  It’s the plotline, if you will.  As a divorce lawyer, the very thought of anyone being foolish enough to marry someone who asks for such an extensive and expensive list of presents from Santa (um, would that be Sugar Daddy Santa?) will most certainly be seeking out the services of a divorce lawyer before long.  If there’s any money left to hire one, that is.

The lawyer in me screams “Prenup! Prenup!” before the song is even half way over.  Think this through.  If you have the bucks to marry such a person in the first place, you’ve got a lot to lose when divorce time rolls around.  Your spouse may walk away with a sizeable chunk of your assets and you may even have the privilege of paying a hefty alimony award.  Ah yes, divorce can be fun.

I’m wondering why people don’t figure this out before walking down the aisle.  If the partner you choose expects expensive gifts on a regular basis while you’re dating, it seems to be a no-brainer that she or he (yes, there are plenty of guys who find Sugar Mamas) will become accustomed to that lifestyle.  Basically, you’re on the hook for a lot of spending.

The infamous George David divorce comes to mind.  The guy was worth something like 329 million bucks and his wife, Countess Marie Douglas-David, wanted a settlement of 100 million.  I’m rather sure that losing 100 million wouldn’t have hurt old George too badly but hey, that’s a lot of moolah.  According to the news sources, the Countess argued that she had no income and that her weekly expenses included $4,500 for clothes, $1,000 for hair and skin treatments, $1,500 for restaurants and entertainment, $8,000 for travel, $700 for limousine services, $2,209 for an assistant, $1,570 for horse care and $600 for flowers.

Notice those were her weekly expenses folks.  I particularly liked the $600 for flowers.  Wow.  I don’t think I spend $600 for flowers in an entire year!

Next holiday season, when the radio stations start featuring those beloved holiday songs 24/7, you’ll most likely be subjected to 1,000 airings of Santa Baby.  Remember this post and don’t say I didn’t warn you.

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.

copyright 2011 Irene C. Olszewski

The Connecticut Premarital Agreement Act (found at C.G.S. 46b-36(a-j)) defines “premarital agreement” as “an agreement between prospective spouses made in contemplation of marriage.” It is a legally enforceable contract between the parties that designates their respective rights and obligations.

Section 46b-36d states that:

“(a) Parties to a premarital agreement may contract with respect to:

(1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

(2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

(3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

(4) The modification or elimination of spousal support;

(5) The making of a will, trust or other arrangement to carry out the provisions of the agreement;

(6) The ownership rights in and disposition of the death benefit from a life insurance policy;

(7) The right of either party as a participant or participant’s spouse under a retirement plan;

(8) The choice of law governing the construction of the agreement; and

(9) Any other matter, including their personal rights and obligations.”

It is important to note that pursuant to 46b-36d(b):

“ No provision made under subdivisions (1) to (9), inclusive, of subsection (a) of this section may be in violation of public policy or of a statute imposing a criminal penalty.”

It is also important to understand that under 46-b-36d(c):

” The right of a child to support may not be adversely affected by a premarital agreement. Any provision relating to the care, custody and visitation or other provisions affecting a child shall be subject to judicial review and modification.”

In other words, parties may agree to specific provisions concerning the support, care, custody and visitation of minor children but it will be up to a judge to decide if those provisions will be enforceable. For example, if a couple agrees that upon their divorce, any minor children born to the marriage will live with the father – and the father later turns out to be an abusive alcoholic who has repeatedly beaten the children and exposed them to inappropriate behaviors – a judge would be hard pressed to find that provision in the best interests (or safety) of the minor children.

When negotiating a premarital (prenuptial) agreement, it is advisable for both parties to consult with separate lawyers in order to have a full and complete understanding of their rights with respect to marriage and the premarital agreement. Often, one lawyer is retained to draft the agreement and the second lawyer is asked to review it with the other party. People often ask why I am unable to represent both parties when drafting such a document. Simply put, it presents a conflict of interest. Read my post: Why does it take two lawyers for a pre-nuptial agreement?

Pursuant to 46b-36c:

“[a] premarital agreement shall be in writing and signed by both parties. It shall be enforceable without consideration.”

The term “without consideration” means that neither party must pay anything to the other party nor exchange something of value in order for them to enter into a valid contract.

”A premarital agreement becomes effective upon marriage unless otherwise provided in the agreement.” [46b-36e] What if a couple signs a prenuptial agreement and after they are married, they decide they want to revoke it or make changes to it? Under 46b-36f:

“After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation shall be enforceable without consideration.”

It is important for both parties to fully understand the provisions of a premarital agreement completely before it is signed. Prior to signing, each person’s assets and liabilities must be fully disclosed to the other. Section 46b-36g states:

“(a) A premarital agreement or amendment shall not be enforceable if the party against whom enforcement is sought proves that:

(1) Such party did not execute the agreement voluntarily; or

(2) The agreement was unconscionable when it was executed or when enforcement is sought; or

(3) Before execution of the agreement, such party was not provided a fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party; or

(4) Such party was not afforded a reasonable opportunity to consult with independent counsel.

(b) If a provision of a premarital agreement modifies or eliminates spousal support and such modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such eligibility.

(c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.”

If a marriage is deemed by a court to be void or voidable, “an agreement that would otherwise have been a premarital agreement shall be enforceable only to the extent necessary to avoid an inequitable result.” [46b-36h].

If you are contemplating marriage and believe that a prenuptial agreement may be important for you to consider, you should seek legal counsel well in advance of the wedding.

I came upon the following post on the topic that is well-written and informative:

Why You May Need a Prenuptial or Postnuptial Agreement

There are many reasons that a person may want to execute a prenuptial (or postnuptial) agreement. If you have the slightest doubt as to whether or not such an agreement should be part of your marital planning, you should consult a licensed attorney.