There are important rights that may be protected by a well-drafted prenuptial agreement. For example, when a person has been married before, they may want to protect the inheritance rights of their existing children. Or, one person may come to the marriage with substantial assets, such as a family business or professional practice.
For a long time, it was difficult to know if a prenuptial agreement would be enforced in Connecticut. The decision whether to enforce the agreement was made based on a series of prior judicial rulings and on a case-by-case basis, which left people with little chance for predictability if their marriage ended in divorce.
In 1995, the Connecticut Premarital Agreement Act was passed making it easier to predict when a prenup would be enforced. It gives courts guidance on what to consider when determining the validity (enforceability) of the agreement:
- Voluntariness by both parties (lack of coercion)
- Full financial disclosure by both parties
- Independent legal counsel for both parties
- The agreement needs to be found NOT to have been “unconscionable” either when signed or when enforced. The concept of unconscionability has to do with extreme injustice – something that is contrary to what a neutral person’s good conscience would feel is appropriate.
If all of these elements were in place when the prenup was signed, the courts will generally enforce the agreement. However, the enforceability of a prenuptial agreement is decided at the time of divorce or legal separation and a court may still reject the agreement under certain limited circumstances. One is if it is clearly against public policy to do so. This can be if the agreement is “unconscionable” or if enforcing it would leave a party with so little money as to be eligible for public assistance.
Another is if there is undue pressure to sign the agreement, such as when the wedding has already been scheduled. A party could reasonably feel that there is no choice but to sign the agreement or the wedding is off, and that could be both expensive and personally embarrassing. If one party signs the agreement without counsel on the day of the wedding, the agreement would probably be considered unenforceable. The closer you are to that situation, the worse for your agreement.
A prenup can protect your existing assets and your children’s rights, but these agreements take time and care. If you are interested in a prenuptial agreement, be sure to work with an attorney who understands these requirements, is knowledgeable about recent court trends, and can advise you wisely.