It is no secret today that more and more marriages are ending in divorce than ever before. Some estimate that 50 percent of all marriages today will end in divorce. As a result of this unfortunate phenomenon, more couples today are planning ahead by entering into what are known as prenuptial or premarital agreements. Moreover, when these divorced spouses decide to enter into second or even third marriages, they are understandably "gun shy" and want to better protect themselves from the financial uncertainties of another potential divorce. Consequently, premarital agreements are becoming increasingly more popular.
The Connecticut Premarital Agreement Act
In Connecticut, the law governing premarital agreements was previously a creature of judicial decisions rendered by the courts on a case by case basis. However, on October 1, 1995, the Connecticut Legislature passed the Connecticut Premarital Agreement Act (Public Act No. 95-170). The Act sets forth specific criteria to help future husbands and wives make sure their agreements will be followed in the event of a later divorce. The Act also gives guidance to a court that is faced with making the decision of whether a premarital agreement is enforceable or not.
Facts that Make Premarital Agreement Unenforceable
Under the Act, a premarital agreement will not be enforced by a court if any of the following facts are proved by the spouse seeking to "get out" of the premarital agreement (C.G.S. § 46b-36g):
Agreement Not Entered Into Voluntarily
The Agreement was not entered into voluntarily or was entered into under duress or coercion. For example, if on the wedding day, on the way to the church, 15 minutes prior to the wedding, the wife-to-be was given the agreement for the first time and told to sign it "or the wedding was off", then an argument can be made that the agreement was entered into under duress or coercion. Another example of duress would be if the wife-to-be held a gun to the head of the husband-to-be and said "sign this prenup or I will shoot you." Although these examples are somewhat clear, there will be many situations where the facts are not quite as clear. Thus, in those cases, courts will have to struggle with making a determination as to whether the premarital agreement was entered into voluntarily.
Not Provided Fair and Reasonable Disclosure
They were not provided with a fair and reasonable disclosure of the amount, character and value of the property, financial obligations and income of their fiancée before entering into the agreement. The requirement of a fair and reasonable disclosure may be easily satisfied if each party prepares and exchanges with the other, sufficiently in advance of the signing of the premarital agreement, signed and sworn financial statements specifically listing each parties' income, assets and liabilities.
Each party must be given a reasonable opportunity to ask questions about the financial statements and to receive and review any confirming documentation or backup documents regarding income, assets and liabilities, such as, for example, bank statements, brokerage statements, pension and retirement documents, paystubs, corporate books and records, etc. Finally, the premarital agreement itself should recite the fact that each party has received and reviewed a sworn financial statement of the other party and has further had an opportunity to review any supporting documentation and to ask any questions he or she may have about the financial condition of the other party.
Not Allowed to Consult Independent Counsel
They were not given an opportunity to consult with independent counsel prior to signing the agreement. Although the Connecticut Premarital Agreement does not require that each party be represented by independent counsel, each party must nevertheless 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 parties should not be represented by the same attorney. In fact, an attorney who undertakes to represent both parties to a premarital agreement is in violation of the Rules of Professional Conduct. The premarital 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.
Enforcing the Agreement Makes Party Eligible for Public Assistance
If the agreement is upheld, they will become eligible for and forced to receive public assistance. Put simply, premarital agreements which would result in one party owning a mansion and a yacht leaving the other party forced to use food stamps are not likely to be upheld under this provision of the Connecticut Premarital Agreement Act. As a matter of public policy, the state legislature has decided that agreements which would force one party to need state assistance should not be enforced.
The agreement was "unconscionable" at the time it was executed or at the time enforcement is sought. This is sort of a "catch-all" which gives the court some discretion in evaluating the propriety of a premarital agreement. Although the term "unconscionable" is very widely discussed in the area of contract law, there are very few, if any, decisions interpreting that term in the context of premarital agreements. Black's Law Dictionary defines an "unconscionable" bargain to be "one which no man in his senses, not under delusion, would make on the one hand, and one which no fair and honest man would accept on the other hand." Thus, put in more clear layman's terms, a premarital agreement is unlikely to be upheld if application of its provisions would result in one party suffering a great injustice in the eyes of the court.
Are Premarital Agreements Ironclad?
No, as illustrated above, there is a great deal of room for interpretation by the court in deciding whether the premartial agreement was entered into voluntarily, or whether it is unconscionable. Moreover, there is simply no way to predict what the family's economic and personal situation might be at the time the agreement is being enforced (i.e. at the time of divorce). However, assuming
- There is full financial disclosure;
- That each party has independent legal representation; and
- That neither party was under duress or coercion at the time the agreement was executed, then the court's ability to reject the agreement is most likely limited.
Tips For Those Individuals Contemplating A Premarital Agreement
See an experienced matrimonial attorney before discussing the issue with your fiancée. You may find out, based upon your discussion with the attorney, that your situation is not suitable for a premarital agreement. If that is the case, then you will have saved yourself from the sometimes difficult discussion of this topic with your fiancée. On the other hand, if you bring up the subject of a premarital agreement with your fiancée prior to seeing an attorney, and then find out that there is no reason for you to enter into a premarital agreement, then you will have gone through a difficult conversation which could have been avoided.
Do Not Wait Until the Last Minute
Signing a premarital agreement in the limousine on the way to the church is just asking for trouble. You are much better off seeing an attorney and getting the ball rolling four to six months prior to the wedding date.
Be Prepared When You See Your Attorney at the Initial Consultation
Arrive at the attorney's office with a written list of the reasons you may want to enter into a premarital agreement, if you know them, along with a list of the things you will want to accomplish in the agreement itself. Also bring along recent tax returns (3 to 5 years is usually sufficient), along with a complete list of your assets and liabilities, along with their approximate values. By reviewing these documents at the initial consultation, your attorney will be in a much better position to evaluate your personal situation, and, in return, you will get more complete and useful legal advice.
Think About What Your Fiancée's Reaction Will Be
Of course, this tip applies only if you are the party wanting the agreement. If you are the party who did not bring up the agreement, then you should think about your own reaction and why it was either positive or negative. Premarital agreements normally involve a great deal of negotiation in an uncomfortable setting; therefore, getting all the behind the scenes emotions and baggage out in the open can be very helpful for your attorney in the negotiation process.
Be Open And Honest With Both Your Attorney And Your Fiancée
Do not hold anything back or fail to raise an issue simply because you feel you may jeopardize the marriage. This could cause resentment or much greater problems years later in the unfortunate event there is a divorce case. Make sure that your attorney is aware of all your concerns and that he or she resolves those issues to your satisfaction. Silence is not golden in the area of premarital agreements.
As we enter the 21st century, premarital agreements may become so common that they will be a part of the normal wedding planning process, along with selecting a location, picking a band and organizing the menu. Brides and grooms facing premarital agreements should carefully select an experienced matrimonial lawyer for assistance and guidance through the entire process. By working with such a professional, the experience, although never as enjoyable as sampling wines and hors d' oeuvres, may nevertheless be relatively pain free, as long as an open line of communication is kept among all of the parties involved.