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.
