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Prenuptial (Pre-Marital) & Postnuptial Agreements
in Connecticut
The information presented here is only
meant to offer a brief guide to the law concerning Prenuptial (Pre-Marital)
and Postnuptial Agreements in Connecticut. It is not and should not be construed as legal advice. Questions
about your individual circumstances should be discussed with a licensed attorney. A
Connecticut family lawyer at the Law Offices of Irene C.
Olszewski, LLC is available to assist you.
◊
Prenuptial Agreements
◊
If you are planning to enter into
marriage, you may wish to execute a Prenuptial (Pre-marital) Agreement. In
the event that your marriage later terminates, a court may
determine the distribution of your assets if you and your spouse can not agree.
Planning in advance could save you time, money, and unanticipated problems.
A Prenuptial Agreement is a
contract enforceable by a court of law that clearly details how real and
personal property will be distributed upon dissolution (divorce). For
example, Person A lives in a home that has been in her family for three
generations. Upon their marriage, Person B will move into the home but it
is the couple's mutual intention and understanding that if the marriage should
terminate, Person B will move out and will have no claim or interest in the
title to the home. The specific details of that agreement should be
memorialized in a formal written and properly executed Prenuptial Agreement.
Along the same lines, imagine
that Person B will enter the marriage owning a large collection of rare and
valuable paintings. The parties may agree in writing -- prior to entering
into the marriage -- that upon termination of the marriage, Person A will have
no claim or interest in that collection of paintings and Person B will retain
all rights and interest in the collection.
The Connecticut legislature
enacted Public Act 95-170 which went into effect on October 1, 1995 and became
applicable to all premarital (prenuptial) agreements executed on or after that
date. The Act was codified as Connecticut General Statues Sec.
46b-36a through 46b-36j.
The text of C.G.S Sec. 46b-36d
explicitly 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.
(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.
(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."
Under current Connecticut law, “a
premarital agreement becomes effective upon marriage unless otherwise provided
in the agreement.”
Sec. 46b-36f
states, "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.”
Finally,
Sec. 46b-36g
states that, “(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.”
A licensed family law attorney at the Law Offices of Irene C.
Olszewski, LLC is available to assist you in drafting a Prenuptial Agreement.
Click
to Read Posts about
Prenuptial Agreements on "Attorney O's Midnight Musings" Blog
◊
Postnuptial
Agreements
◊
A Postnuptial Agreement is a
contract enforceable by a court of law that clearly details how real and
personal property will be distributed upon dissolution (divorce).
Postnuptial Agreements are executed by couples AFTER marriage.
In the case
Bedrick v. Bedrick,
released on April 26, 2011, the Connecticut Supreme Court set forth, for the
first time, the applicable legal standards for postnuptual agreements in this
state. According to the Court:
“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.
For more information on your legal rights in
Postnuptial Agreements, contact a Connecticut
family law attorney at the Law Offices of Irene C. Olszewski, LLC in
East Hartford.
Click
to Read Posts about
Postnuptial Agreements on "Attorney O's Midnight Musings" Blog
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Olszewski, LLC
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06118
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This website is for informational purposes
only. It is not intended to be and should not be construed as
legal advice. Use of this website and/or the information contained on this
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legal questions should be addressed to a licensed attorney.
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East Hartford, Connecticut
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East Hartford, Connecticut
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Last modified:
08/29/2011
