Connecticut Postnuptial Agreements
A Connecticut postnuptial agreement can be an effective tool when financial struggles are putting a strain on a couple’s marriage, or if you just want to set both spouses up for economic success. However, courts put these marriage agreements under the microscope. To make sure your postnup will be enforced during divorce, you need to work with an attorney who knows how to make it hold up under the court’s special scrutiny.
What is a Postnuptial Agreement?
A postnuptial agreement is a contract entered between spouses during the marriage. In many ways, it is similar to a prenuptial agreement, but it is signed after the marriage, instead of before the wedding. Postnuptial agreements can clarify ownership of the parties’ assets and can be used as a way to avoid property distribution issues that may arise during divorce. Some reasons couples may sign postnuptial agreements include:
- Resolving financial disputes which could create marital conflict threatening separation or divorce
- Allowing spouses to maintain separate financial lives (including both assets and liabilities)
- Equalizing the risk to both spouses before engaging in a new business venture
- Protecting one spouse’s ownership interest in a closely held business with a restrictive partnership agreement
- Planning for one spouse’s incapacitation or disability
- Updating or replacing a prenuptial agreement that no longer fits the family’s needs
- Accounting for property obtained or inherited by one spouse after the marriage
Are Connecticut Postnuptial Agreements Enforceable?
Historically, it was questionable whether postnuptial agreements could be enforced. While prenuptial agreements are controlled by statute, there is no law specifically allowing or preventing the entry of a postnuptial agreement. Connecticut courts presented with the issue sometimes found that postnuptial agreements were inherently coercive because one spouse was trying to preserve the marriage, while the other was out for financial gains.
Then, in 2011, the Connecticut Supreme Court recognized that "postnups" – like "prenups" – are consistent with the public policy of encouraging families to resolve their domestic issues privately. Postnuptial agreements allow couples to define their financial futures, reducing stress and conflict in the marriage, so they can focus on other issues the family may face. The court found that "rather than inducing divorce" postnuptial agreements "simply acknowledge its ordinariness" and "do not encourage or facilitate dissolution" but "harmonize with our public policy favoring enduring marriages."
How to Enter a Valid Postnup
Today, postnuptial agreements will be enforced as a contract between the parties as long as they are fair and equitable at the time of execution and not “unconscionable” at the time of dissolution. This means they must be entered into voluntarily by both parties – without fraud, undue influence, coercion, duress, or other influence on either party. In addition, circumstances must not have changed so substantially since the contract’s entry that it would be obviously unfair to enforce its terms as written.
In forming a valid postnup, often one Connecticut postnuptial agreement attorney is hired to serve as a neutral mediator. Each spouse is required to fully disclose their financials – including assets, bank accounts, property, savings, debts, and loans – to the other. The mediator will then help the spouses set specific terms for their agreement, and then be given a draft of the postnuptial agreement. Each spouse is encouraged to meet with a separate attorney of their choice to review the draft, and propose any revisions they may need, before signing.
How Does a Postnuptial Agreement Affect Divorce?
The goal of a postnuptial agreement is to resolve the parties’ property and financial issues to avoid or minimize the chances of a divorce. If divorce proves to be inevitable, a postnuptial agreement can greatly reduce the time and expense of a Connecticut divorce. While there is always a possibility for changes in circumstances during the marriage that render strict enforcement inappropriate or unfair (unconscionable), the postnuptial agreement offers a starting point for inventorying and dividing assets should the marriage break down.
Can You Invalidate a Postnuptial Agreement?
If one party does not want the postnuptial agreement to apply to their divorce, they will need to ask the court to set it aside. Connecticut courts give postnuptial agreements “special scrutiny” – looking at how they were entered far more critically than prenups. For example, there is no consideration required for a prenuptial agreement according to the Connecticut prenuptial agreement statute – the agreement is based on the mutual promise to get married. No similar deference is given to postnuptial agreements. Both spouses need to get something out of the deal for it to be enforceable. The Connecticut courts will be looking out for contracts entered based on a threat of divorce, so these agreements must be carefully drafted by experienced Connecticut family law attorneys.
The family law attorneys at Lawrence & Jurkiewicz, LLC in Torrington, Connecticut assist spouses and families throughout the greater Hartford area and the Litchfield County area. Connecticut divorce attorney Ed Jurkiewicz is a member of the Connecticut Council for Non-Adversarial Divorce, the Family Law Section of the Connecticut Bar Association, and the Litchfield County Collaborative Divorce Group. We can help spouses negotiate and prepare their postnuptial agreement, or we can help individuals enforce or set aside the agreement should a divorce occur. We offer consultations by in-person appointment, phone conferences and zoom meetings. Please call us at (860) 264-1551 or contact us to schedule a confidential consultation to see how we can help you.