|Attorney Pamela Magnano|
Thursday, May 23, 2013
Many people chose to enter into prenuptial agreements prior to getting married. A question that is often asked by our clients is: will this agreement be valid if I divorce? Prenuptial agreements (sometimes referred to as antenuptial agreements) are reviewed on a case by case basis. However, there are some items that can help you determine if your prenuptial agreement will be valid.
The date that the agreement was entered into is an important factor in determining how the Court will decide its validity. On October 1, 1995, Connecticut General Statutes § 46b-36g went into effect. This statute governs the enforcement of premarital agreements made on or after October 1, 1995. The statute provides that a premarital agreement will not be enforced if the party against whom enforcement is sought proves: (1) it was not executed voluntarily; (2) it was unconscionable at the time it was signed or the time it is sought to be enforced; (3) the party was not provided with fair and reasonable disclosure of the other parties’ assets and income; (4) the party was not afforded an opportunity to consult with counsel. Agreements entered into prior to October 1, 1995 are governed by the three prong test (pp 15) established in the case of McHugh v.McHugh, 181 Conn. 482 (1980). The three prong test established by the McHugh Court provided that prenuptial agreements would be enforceable if: (1) the contract was validly entered into; (2) its terms do not violate public policy; (3) the circumstances of the parties at the time the marriage is dissolved are not so beyond the contemplation of the parties at the time the contract was entered into as to cause its enforcement to work injustice. Id. at 485-486.
The Court in Crews v. Crews,295 Conn. 153 (2010) elaborated on the third prong in the McHugh case. The Crews Court found that “to render unenforceable an otherwise valid antenuptial agreement, a court must determine: (1) the parties’ intent and circumstances when they signed the antenuptial agreement; (2) the circumstances of the parties at the time of the dissolution of the marriage; (3) whether those circumstances are ‘so far beyond’ the contemplation of the parties at the time of execution; and (4) if the circumstances are beyond the parties’ initial contemplation, whether enforcement would cause an injustice.” Id. at 168. The burden of proving these elements is on the person seeking to enforce the agreement. This clarification in Crews makes the issue of whether or not an otherwise valid agreement will be enforceable very case specific.
For Prenuptial Agreements entered into on or after October 1, 1995, the Court will make its determination regarding validity by analyzing the four factors listed in C.G.S. § 46b-36g. It is important to note that a party seeking to have the prenuptial agreement deemed unenforceable does not have to prove all four factors. For example, the Agreement may have been entered into voluntarily but if the party can show that he/she was not provided with fair and reasonable disclosure of the other parties’ assets and income, the Agreement will deemed unenforceable. Similar to the Agreements entered into prior to October 1, 1995, the analysis of whether or not to enforce a prenuptial agreement is very case specific.
Regardless of whether your case will be examined under the three prong test outlined in McHugh or whether it will be governed by the statute, your attorney will need specific information concerning your circumstances both at the time of the execution of the agreement as well as at the time of divorce in order to help you determine if the agreement will be enforceable. You should make sure you provide your attorney with an accurate, signed copy of the prenuptial agreement and copies of any correspondence leading up to the execution of the same. You should also bring copies of any financial disclosures that were made by either party prior to signing the agreement if they are not already attached to the prenuptial agreement.