Postnuptial agreements are as common among gay and lesbian couples as they are among straight couples. I posted an article on my other legal blog, Attorney O’s Midnight Musings about a case that was decided by the Connecticut Supreme Court on April 26, 2011 that sets forth the legal standards for postnuptial agreements. Because it’s an such important issue, I am re-posting it here:
In the case Bedrick v. Bedrick, released on April 26, 2011, the Connecticut Supreme Court set forth, for the first time, the applicable legal standards for postnuptual agreements in this state. According to the Court:
“Because of the nature of the marital relationship, the spouses to a postnuptial agreement may not be as cautious in contracting with one another as they would be with prospective spouses, and they are certainly less cautious than they would be with an ordinary contracting party. With lessened caution comes greater potential for one spouse to take advantage of the other. This leads us to conclude that postnuptial agreements require stricter scrutiny than prenuptial agreements. In applying special scrutiny, a court may enforce a postnuptial agreement only if it complies with applicable contract principles, and the terms of the agreement are both fair and equitable at the time of execution and not unconscionable at the time of dissolution.”
The Court then defined what constitutes a fair and equitable postnuptial agreement:
[T]he terms of a postnuptial agreement are fair and equitable at the time of execution if the agreement is made voluntarily, and without any undue influence, fraud, coercion, duress or similar defect. Moreover, each spouse must be given full, fair and reasonable disclosure of the amount, character and value of property, both jointly and separately held, and all of the financial obligations and income of the other spouse. This mandatory disclosure requirement is a result of the deeply personal marital relationship.”
The Court also directed how a court shall determine the validity of a postnuptial agreement and how to determine if it is fair and equitable:
[I]n determining whether a particular postnuptial agreement is fair and equitable at the time of execution, a court should consider the totality of the circumstances surrounding execution. A court may consider various factors, including ‘‘the nature and complexity of the agreement’s terms, the extent of and disparity in assets brought to the marriage by each spouse, the parties’ respective age, sophistication, education, employment, experience, prior marriages, or other traits potentially affecting the ability to read and understand an agreement’s provisions, and the amount of time available to each spouse to reflect upon the agreement after first seeing its specific terms . . . [and] access to independent counsel prior to consenting to the contract terms.’’
And how to determine if a postnuptial agreement is unconscionable at the time of dissolution of the marriage:
“With regard to the determination of whether a postnuptial agreement is unconscionable at the time of dissolution, ‘‘[i]t is well established that [t]he question of unconscionability is a matter of law to be decided by the court based on all the facts and circumstances of the case.’’ (Internal quotation marks omitted.) Crews v. Crews, supra, 295 Conn. 163. ‘‘The determination of unconscionability is to be made on a case-by-case basis, taking into account all of the relevant facts and circumstances.’’ Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 89, 612 A.2d 1130 (1992). Unfairness or inequality alone does not render a postnuptial agreement unconscionable; spouses may agree on an unequal distribution of assets at dissolution. ‘‘[T]he mere fact that hindsight may indicate the provisions of the agreement were improvident does not render the agreement unconscionable.’’ (Internal quotation marks omitted.) Lipic v. Lipic, 103 S.W.3d 144, 150 (Mo. App. 2003). Instead, the question of whether enforcement of an agreement would be unconscionable is analogous to determining whether enforcement of an agreement would work an injustice. Crews v. Crews, supra, 295 Conn. 163. Marriage, by its very nature, is subject to unforeseeable developments, and no agreement can possibly anticipate all future events. Unforeseen changes in the relationship, such as having a child, loss of employment or moving to another state, may render enforcement of the agreement unconscionable.
This is an important case of first impression that now sets the standard for postnuptial agreements. If you and your spouse are considering a postnup, you should contact a licensed attorney.
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copyright 2011 Irene C. Olszewski
Connecticut Lesbian and Gay Law 