A discussion of the benefits of pre-nuptial agreements. Highlights of the Connecticut Premarital Agreement Act. Rev. 11/02/06

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   Susan K. Smith, Attorney-Mediator        
Hartford and Avon, Connecticut       

A pre-nuptial agreement ("pre-nup") is an agreement which is entered into by a couple prior to marriage to determine what their rights and responsibilities are in the event of divorce.

Why Have a Pre-Nuptial Agreement? Pre-nups have become more common for the both the wealthy and the not-so-wealthy in order to: 

• Avoid protracted proceedings if the marriage fails after a short period of time.

• Protect the financial autonomy that individuals have developed in their careers or because they are marrying later in life. 

• Provide comfort to families contributing money to a new couple that family money will stay in the family.

• Protect inheritances.

• Protect family or pre-marital businesses and to avoid the protracted and intrusive litigation concerning the value of business interests that can occur during divorce.

• Provide for and protect children of first marriages. This also serves to ease the entry of a step-parent into the family picture when there are adult-aged children.

• Clarify respective financial responsibilities when one or more of the spouses has been married. The pre-nup might become important if a motion to modify child support or alimony is filed and a former spouse makes the claim that there is a "substantial change in circumstances" due to remarriage.

The Legalities. Twenty-six jurisdictions, including Connecticut, have adopted some form of the Uniform Premarital Agreement Act (UPAA). Link to a list of all jurisdictions and their statutes. The Connecticut Premarital Agreement Act is codified at Conn. Gen. Stats. § 46b-36a (eff. Oct. 1, 1995). The CPAA has eliminated some of the problems associated with drafting pre-nups by establishing their enforceability and providing standards. The Connecticut Premarital Agreement Act provides that:

• Agreements must be in writing and signed.

• Agreements must be preceded by full financial disclosure by both parties.

• Parties must have adequate time to review the agreement and obtain legal advice "from independent counsel" before signing. The Act does not mandate that each party have separate counsel, but many lawyers insist on it because of the emphasis placed on that factor in court decisions. Under some circumstances, agreements can be mediated by a neutral mediator. If the pre-nup is mediated, each party must allow for adequate time to have the agreement reviewed by independent counsel.

• Agreements must be entered into voluntarily. 

• Agreements cannot be "unconscionable."

• Applies to most property and assets. Applies to spousal support with some restriction.

• Does not apply to agreements concerning children (custody, visitation, child support). Any such agreements are not binding and can be modified by a court. Courts always assume and retain jurisdiction to make decisions concerning the best interests of children at the time disputes arise.

Planting the Seeds of Divorce? Some experts are of the opinion that the negotiation process itself can cause dissension which can damage the foundation of a new marriage. If one spouse feels that s/he was manipulated by the other or not treated fairly, the resentment that results can undermine the relationship. Parties, attorneys and mediators should take care that the pre-nuptial agreement process does not plant the seeds of divorce.

Post-nuptial Agreements. A post-nuptial agreement can be negotiated after a serious problem or breakdown in the marriage occurs. In an effort to preserve the marriage, couples can enter into a post-nup to determine property allocation and their respective responsibilities. Post-nups are not covered by the UPAA, however, the UPAA can provide guidelines for the drafting and analysis of post-nups. Parties should keep the basic principles in mind; namely, there should be full disclosure, the agreement cannot be unconscionable or the result of one spouse's over-reaching, and the parties should have plenty of time before signing to consult an attorney. Ideally, each party should have separate counsel.  

Other Links:

• Court TV FAQ on Pre-Marital Agreements.