By Michelle A. Malone, Esq. and Judith Ellenthal, Esq.
While not the most romantic aspect of a courtship, many couples contemplating marriage have a desire to enter into a prenuptial agreement that will establish ground rules to be applied at the end of the marriage, whether by divorce or upon the death of a spouse.
A PRENUPTIAL AGREEMENT CAN PROVIDE A ROADMAP FOR THE FUTURE
A premarital agreement is often referred to as a “pre-nuptial” agreement or a “pre-nup” for short. A prenuptial agreement is a written contract, signed by both spouses. It controls the disposition of their rights, interests and obligations in property at the conclusion of the marriage. Agreements can affect property that is currently owned or property that will be acquired in the future. Tangible or intangible property can be described in the pre-nup.
The agreement can define whether a spouse is entitled to support in the event of separation, divorce, death or some other event. Since there is no standard form for prenuptial agreement, you and your spouse-to-be are free to fashion one that addresses the specifics of your situation. The Connecticut Premarital Agreement Act (the “Act”), which begins at §46b-36a of the Connecticut General Statutes, governs the scope and enforcement of premarital agreements.
Whether you and your spouse-to-be are just starting out or are advanced in your careers, prenuptial agreements allow you to address the division of assets you currently have and assets you may acquire. This includes inheritances. A pre-nup can also define how debt will be divided in the event of divorce or death.
Premarital agreements can provide a roadmap and a sense of certainty that a spouse contemplating divorce may find comforting. Divorce even under the best of circumstances is a highly emotional event. A pre-nuptual agreement can avoid a significant amount of stress by eliminating the uncertainty of one of the primary controversies surrounding a couple’s separation.
How Connecticut courts evaluate prenuptial agreements
Today in Connecticut, pre-marital assets, including gifts, inheritances and real estate acquired before the marriage are not excluded from division of property during a divorce. A premarital agreement will be enforceable if each party fairly and reasonably discloses his or her assets, liabilities and income to the other. Each spouse should have the opportunity to consult individually with an attorney. The agreement, to be enforceable, must be entered voluntarily.
Generally, a Court will overturn a premarital agreement if it is “unconscionable,” which is rare. Whether or not the premarital agreement is a “good bargain” for one party over the other does not even enter into the analysis of whether a premarital agreement is unconscionable. Basically, once voluntarily executed, without duress or coercion, after full disclosure, the premarital agreement is binding … for better or for worse.
If you have questions or concerns about whether a prenuptial agreement may be right for you, contact Cacace, Tusch & Santagata.