I posted the following tonight on my other blog, Attorney O’s Midnight Musings: Connecticut Law. It is equally applicable to lesbian and gay couples:
The Connecticut Premarital Agreement Act
I practice law in Connecticut and I receive calls every week from people who are contemplating marriage and want more information on premarital (or prenuptial) agreements. Often, a person will explain that she has substantial assets (or stands to inherit substantial assets from her parents) which she wants to protect in the event of a dissolution of marriage, legal separation or annulment.
The Connecticut Premarital Agreement Act (found at C.G.S. 46b-36(a-j)) defines “premarital agreement” as “an agreement between prospective spouses made in contemplation of marriage.” It is a legally enforceable contract between the parties that designates their respective rights and obligations.
Section 46b-36d states that:
“(a) Parties to a premarital agreement may contract with respect to:
(1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
(2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
(3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
(4) The modification or elimination of spousal support;
(5) The making of a will, trust or other arrangement to carry out the provisions of the agreement;
(6) The ownership rights in and disposition of the death benefit from a life insurance policy;
(7) The right of either party as a participant or participant’s spouse under a retirement plan;
(8) The choice of law governing the construction of the agreement; and
(9) Any other matter, including their personal rights and obligations.”
It is important to note that pursuant to 46b-36d(b):
“ No provision made under subdivisions (1) to (9), inclusive, of subsection (a) of this section may be in violation of public policy or of a statute imposing a criminal penalty.”
It is also important to understand that under 46-b-36d(c):
” The right of a child to support may not be adversely affected by a premarital agreement. Any provision relating to the care, custody and visitation or other provisions affecting a child shall be subject to judicial review and modification.”
In other words, parties may agree to specific provisions concerning the support, care, custody and visitation of minor children but it will be up to a judge to decide if those provisions will be enforceable. For example, if a couple agrees that upon their divorce, any minor children born to the marriage will live with the father – and the father later turns out to be an abusive alcoholic who has repeatedly beaten the children and exposed them to inappropriate behaviors – a judge would be hard pressed to find that provision in the best interests (or safety) of the minor children.
When negotiating a premarital (prenuptial) agreement, it is advisable for both parties to consult with separate lawyers in order to have a full and complete understanding of their rights with respect to marriage and the premarital agreement. Often, one lawyer is retained to draft the agreement and the second lawyer is asked to review it with the other party. People often ask why I am unable to represent both parties when drafting such a document. Simply put, it presents a conflict of interest. Read my post: Why does it take two lawyers for a pre-nuptial agreement?
Pursuant to 46b-36c:
“[a] premarital agreement shall be in writing and signed by both parties. It shall be enforceable without consideration.”
The term “without consideration” means that neither party must pay anything to the other party nor exchange something of value in order for them to enter into a valid contract.
”A premarital agreement becomes effective upon marriage unless otherwise provided in the agreement.” [46b-36e] What if a couple signs a prenuptial agreement and after they are married, they decide they want to revoke it or make changes to it? Under 46b-36f:
“After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation shall be enforceable without consideration.”
It is important for both parties to fully understand the provisions of a premarital agreement completely before it is signed. Prior to signing, each person’s assets and liabilities must be fully disclosed to the other. Section 46b-36g states:
“(a) A premarital agreement or amendment shall not be enforceable if the party against whom enforcement is sought proves that:
(1) Such party did not execute the agreement voluntarily; or
(2) The agreement was unconscionable when it was executed or when enforcement is sought; or
(3) Before execution of the agreement, such party was not provided a fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party; or
(4) Such party was not afforded a reasonable opportunity to consult with independent counsel.
(b) If a provision of a premarital agreement modifies or eliminates spousal support and such modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such eligibility.
(c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.”
If a marriage is deemed by a court to be void or voidable, “an agreement that would otherwise have been a premarital agreement shall be enforceable only to the extent necessary to avoid an inequitable result.” [46b-36h].
If you are contemplating marriage and believe that a prenuptial agreement may be important for you to consider, you should seek legal counsel well in advance of the wedding.
Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.
copyright 2010 Irene C. Olszewski