A prenuptial agreement (also known as “premarital” or “antenuptial”) is a legally binding contract between two people that are planning to get married. Through a prenup, spouses can enter into various agreements about property and income, such as how their separate property (that is, all property acquired before their marriage) will be treated during marriage and in the event of a divorce. Even though separate property generally remains separate property after a divorce, for some with very sizable estates or those going into a second marriage, it’s important to spell it out so there is no misunderstanding later.
Couples can also make decisions about how their joint or marital property, assets, and income will be treated during the marriage and in the event of a divorce; they can also set limits on alimony (spousal support).
However, prenuptial contracts must meet their own unique and very stringent set of requirements in order to be considered valid. The exact requirements will depend on when the prenuptial agreement was signed by the parties.
In Connecticut, the law regarding prenuptial agreements executed before October 1, 1995 is set forth in in the benchmark Connecticut Supreme Court case of McHugh v. McHugh, 181 Conn. 482 (1980), which held that prenuptial agreements could be enforceable (valid) if the following requirements were met:
The first McHugh criterion focuses on whether the prenuptial agreement in question complies with the ordinary principles of contract law. Specifically, courts look at the terms of the agreement and the circumstances surrounding the agreement's execution (signing) to see whether the parties were aware of their legal rights and their respective assets and liabilities, and proceeded to alter those rights in a fair and voluntary matter.
For example, a finding that one spouse used threats or coercion to force the other to enter into the prenuptial agreement would mean that consent was not voluntary and therefore, the agreement invalid.
The second criterion involves potential violations of public policy, such as:
If, at the time of enforcement (divorce), the court finds that the circumstances of the parties have changed so far beyond what they contemplated at the time the agreement was made as to result in an injustice, the court may hold that the agreement is not valid.
In discussing this third requirement, the McHugh court found that where the divorce is the result of one spouse’s misconduct (for example, adultery), the innocent spouse’s premarital agreement to give up rights, such as to alimony, may not be enforceable because it would result in an unfair result. The outcome of each case will of course depend upon the circumstances of the particular case and the language of the agreement.
Courts have also found that the mere doubling of assets after the agreement may amount to “unconscionability” (unreasonable unfairness) and render a prepnup invalid. Where the economic status of the parties has changed so dramatically between the date of the agreement and the date of divorce, enforcement of the agreement may work an injustice.
For example, if both spouses agreed (in the prenup) to keep their respective employee stocks separate and that neither would pay alimony in the event of a divorce, but 25 years later (at the time of divorce) one spouse’s employer had gone bankrupt and he or she was out of work with no income, while the other spouse had become a multi-millionaire as a result of the employer’s widely successful IPO – a court may find that the 25-year-old agreement prohibiting any alimony is too unfair to enforce.
Absent such unusual circumstances, however, prenuptial agreements freely and fairly entered into will generally be honored and enforced by the court as written.
On October 1, 1995, the Connecticut Legislature passed the Premarital Agreement Act (“PAA”) which applies to all premarital agreements executed after October 1, 1995.
Under the PAA, a prenup is not enforceable if the spouse against whom it is being enforced proves that:
Assuming there is complete financial disclosure and the prenuptial agreement does not violate any statue or public policy, the court's main focus will be comparing the circumstances of the parties at the time of the execution with the parties' financial condition at the time of the divorce. This factor has generated the most significant amount of controversy.
If you are planning on entering into a prenuptial agreement with your fiancé, or your fiancé has asked you to sign a prenuptial agreement, you should speak with an experienced family law attorney in your area, so you can understand how the agreement will affect your rights.