We receive a lot of calls for prenuptial agreements this time of year. One repeated issue we face is the lack of time from the call to the wedding date. Ideally, a prenuptial agreement should be drafted at least three to four months prior to the wedding date. The process of preparing a valid and enforceable prenuptial agreement requires a significant amount of time. The parties must have sufficient time to consult with independent counsel, prepare and exchange financial disclosures, draft and negotiate the terms of the agreement, and ultimately sign the agreement well in advance of the wedding date. Moreover, it is best to avoid the stress of negotiating the prenuptial agreement too close to the wedding date. If you are considering entering into a prenuptial agreement, read on to learn more and please contact us sooner rather than later.
Why Seek a Prenuptial Agreement?
A prenuptial agreement (also known as a “premarital” or “antenuptial” agreement) is a legally binding contract between two individuals that are planning to get married. Through a prenuptial agreement, couples can enter into various agreements about how their separate and joint property, assets, and income will be handled during the marriage and in the event of a divorce or the death of a spouse.
Couples seek a prenuptial agreement for a variety of reasons, including:
- They have children from prior relationships and want to safeguard their assets for their children in case of a divorce.
- One person may have significantly more assets than the other person and may want to protect those assets in case of a divorce.
- One or both of them may have gone through a previous divorce and may wish to avoid the emotional and financial expense of litigating another divorce.
- One or both of them may stand to inherit significant assets from parents or relatives and may want to protect the inheritance in case of a divorce.
The most fundamental reason why people enter into prenuptial agreements is for security. People feel more secure knowing what will happen in the event of death or divorce. For example, personal and financial decisions are much harder to make during a stressful divorce without a prenuptial agreement. If you cannot come to an agreement with your spouse, the court will decide for you. A prenuptial agreement removes the uncertainty of a court decision and ensures that all important decisions were made by you and your spouse.
Contents of Prenuptial Agreements
In Connecticut, prenuptial agreements are governed by the Connecticut Premarital Agreement Act, which is codified in sections 46b-36a to 46b-36j of the Connecticut General Statutes. This law applies to all prenuptial agreements executed on or after October 1, 1995.
Under the Connecticut Premarital Agreement Act, the parties to a prenuptial agreement may contract with respect to the following:
- 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;
- 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;
- The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
- The modification or elimination of spousal support;
- The making of a will, trust, or other arrangements to carry out the provisions of the agreement;
- The ownership rights in and disposition of the death benefit from a life insurance policy;
- The right of either party as a participant or participant’s spouse under a retirement plan; and
- Any other matter, including their personal rights and obligations.
However, the law provides three important exceptions. First, parties may not include in their agreement any provision in violation of public policy or of a statute imposing a criminal penalty. Second, the right to child support cannot be adversely affected. Any provision relating to the care, custody, and visitation of a child is subject to judicial review and modification. Third, the court may invalidate any provision of a prenuptial agreement that modifies or eliminates spousal support and causes one of the parties to become eligible for support under a program of public assistance.
A prenuptial agreement becomes effective upon marriage unless otherwise provided in the agreement. After marriage, the agreement can only be amended or revoked by a written agreement signed by both parties. If the marriage is held to be void or voidable, an agreement that would otherwise have been a prenuptial agreement shall be enforceable only to the extent necessary to avoid an inequitable result.
Enforcement of Prenuptial Agreements
It is important to note that any prenuptial agreement can be challenged in a divorce proceeding. However, the Connecticut Premarital Agreement Act limits the ways in which an agreement can be challenged. To have a Connecticut prenuptial agreement declared unenforceable, the party challenging the agreement must prove one or more of the following:
The Agreement was not entered into voluntarily or was entered into under duress or coercion.
For example, if on the way to the church, 15 minutes before the wedding ceremony, the bride was handed the prenuptial agreement for the first time and was told to sign it “or the wedding was off,” then an argument could be made that the agreement was entered into under duress or coercion. Since the facts are rarely this clear, courts must often struggle to make these determinations.
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.
Each party to the prenuptial agreement has a duty to provide full disclosure of the amount, character, and value of all individually owned property. The courts have clearly held that the burden is not on either party to inquire but is on each to inform. For example, if a husband failed to disclose owning several vacation homes prior to the execution of a prenuptial agreement, his wife could later challenge the agreement on the basis that she did not receive “fair and reasonable disclosure” of the character and value of his properties. The husband cannot claim that his wife should have inquired about his vacation homes, because it was his duty to disclose that information. It was not his wife’s burden to ask.
The requirement of a fair and reasonable disclosure can be easily satisfied if each party prepares and exchanges with the other signed and sworn financial statements specifically listing their income, assets, and liabilities. This should be done sufficiently in advance of the signing of the prenuptial agreement, so each party has a reasonable opportunity to ask questions about the financial statements and an opportunity to receive and review any confirming documentation. Finally, the prenuptial agreement itself should recite the fact that these steps were taken.
Such party was not afforded a reasonable opportunity to consult with independent counsel.
In the first example, where the bride was handed an agreement 15 minutes before the wedding, an argument could certainly be made that she was not afforded a reasonable opportunity to consult with independent counsel. While the Connecticut Premarital Agreement Act does not require that each party be represented by independent counsel, each party nevertheless must be given a reasonable opportunity to consult with independent counsel in order to ensure that he or she is aware of his or her rights. The prenuptial agreement itself should recite that each party has been afforded a fair and reasonable opportunity to consult with independent counsel of his or her own choosing.
The agreement was unconscionable when it was executed or when enforcement is sought.
The classic definition of an unconscionable contract is one “which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other.” In layman’s terms, this means that a prenuptial agreement is unlikely to be enforced if the application of its provisions would result in one party suffering a great injustice in the eyes of the court.
Conclusion
Prenuptial agreements can offer many benefits, but it is essential for couples to ensure that these agreements are drafted properly. If you would like to create a clear, valid, and binding prenuptial agreement, it is important to speak with an experienced Connecticut family law attorney. At McConnell Family Law Group, we can help you and your fiancé create an agreement that will provide for both of your futures, no matter what happens in your marriage.
To learn more about prenuptial agreements or to schedule an appointment with our office, contact us today at (203) 541-5520, or by visiting www.mcconnellfamilylaw.com. For those considering divorce by mediation, we invite you to visit www.connecticutdivorcemediation.com.
