Dear Attorneys,
My spouse and I have been married for several years, but lately we’ve been talking more seriously about our finances and what would happen if we ever got divorced. We never signed a prenuptial agreement. Is it too late to make an agreement now that we’re already married?
Signed,
Better Late Than Never?
Dear Better Late Than Never,
Good news: getting married without a prenup doesn’t necessarily mean you’ve missed your opportunity to make an agreement. You still have a remedy of a post-nuptial agreement, a.k.a. a “post-nup.”
A post-nuptial agreement is an agreement spouses enter into after they are already married. Like a pre-nuptial agreement, it can address financial rights and obligations and establish what will happen to certain assets or financial interests if the marriage ultimately ends. But before you grab a cocktail, sit down at the kitchen table, and start dividing up the house, retirement accounts and Labradoodle, there’s an important catch: Connecticut courts scrutinize postnuptial agreements very carefully.
Why Would a Married Couple Want a Postnup?
There are plenty of reasons a happily married couple might decide to address their finances after the wedding. We most often see this when investment properties are purchased subsequent to marriage, or when one spouse opens a business. Another common reason is that one spouse gains, or stands to gain, a substantial inheritance. A post-nup does not necessarily mean someone is planning a divorce. Rather, it’s similar to an insurance policy. You hope you don’t need to use it, but it’s there if you do. Additionally, many people find that having difficult financial conversations while both parties still want the marriage to work can actually eliminate uncertainty about what would happen if it doesn’t.
Are Postnuptial Agreements Enforceable in Connecticut?
Yes, but there are important requirements. The Connecticut Supreme Court has held that postnuptial agreements can be valid and enforceable. However, because the people entering the agreement are already married and owe one another a different level of trust than two people negotiating at arm’s length, courts apply greater scrutiny to these agreements. Generally, a Connecticut court considering enforcement of a postnuptial agreement will look at whether the agreement complied with contract principles, whether it was fair and equitable when it was signed, and whether enforcing it would be unconscionable at the time of divorce. Perhaps most importantly is that the Court will also want to ensure that each party disclosed their current financial situation at the time the post-nup was drafted, and that neither party was forced into such. That makes it even more important for both parties to hire his or her own attorney so that the party can attest that they have been advised of their rights, responsibilities, and even the fact that the agreement will be thoroughly scrutinized by the court.
Each spouse should have full, fair and reasonable disclosure concerning the other’s assets, liabilities, income and overall financial circumstances. Neither party can “forget” to include something. If you’re asking your spouse to enter into an agreement that could significantly affect his or her financial rights in a future divorce, transparency matters. The voluntariness of signing the agreement is also extremely important. Neither spouse should feel as though he or she was subjected to fraud, coercion, duress, undue influence or similar improper pressure.
Timing and circumstances can therefore be extremely important. There is a big difference between two spouses thoughtfully deciding that they want to clarify their financial relationship and one spouse essentially saying: “Sign this or else.” The other important concept to remember is that circumstances change. While a post-nup might be signed when both spouses are healthy, working and financially independent. Ten or fifteen years later, there may be children, illness, career changes, unemployment, relocation, significant changes in wealth or other circumstances nobody anticipated. That’s one reason Connecticut courts don’t look only at the day the agreement was signed. What enforcement would mean at the time of dissolution can matter, too.
If you’re considering a post-nup, talk to a Connecticut family law attorney before you start
At Wolf & Shore Law Group, we help parties navigate their concerns and help them find a solution that is the right fit for them. If you’re considering drafting a post-nup agreement, we can help you understand your options. Call Wolf & Shore Law Group at 203.745.3151 to schedule a virtual consultation today. Ever Argue with a Woman?
Very Truly Yours,
Wolf & Shore Law Group
*The situations represented in our Dear Attorneys column are entirely fictional and any resemblance to a specific case is unintentional. We cannot, and will not, offer legal advice to anyone who is not a client. However, if you do have questions or concerns, you should contact an attorney at your convenience.
