People getting married
sometimes agree to decide ahead of time how their property
should be split and how other financial matters should be
handled in case the marriage ends in divorce. People
enter into these pre-nuptial agreements or premarital
agreements for a number of reasons.
They may have children from prior marriages
and want to safeguard their assets for their children.
One of the persons may have significantly
more assets than the other person and may want to
protect those assets in case of a divorce.
One or both of them may have gone through a
divorce before, or known someone who did, and may wish
to avoid the expense and fighting that may happen in a
divorce.
One or both of them may be stand to inherit
significant assets from parents or other relatives and
may want to protect the inheritance.
In Connecticut, pre-nuptial
agreements are governed by the
Connecticut Premarital Agreement Act, which is
found in sections 46b-36a
to 46b-36j of the Connecticut General
Statutes. This law applies to all pre-nuptial
agreements made on or after October 1, 1995.
Under the Premarital Agreement
Act, the parties may make arrangements in regard to their
present and future assets, income and debts. These
arrangements may include such matters as:
The extent to which each party can use the
property of the other.
Each party's ability to buy, sell, use,
transfer, spend, and make loans against property.
What should happen to property upon
separation, divorce or death.
Whether and how much alimony should be paid.
The terms of wills or trusts that each party
may make
The ownership and beneficiaries of life
insurance policies.
The parties' rights under pensions and other
retirement plans.
Terms of a pre-nuptial
agreement that deal with the
care, custody and visitation of children can always be
reviewed and changed by a court. A
pre-nuptial agreement may not limit child support in such
a way that negatively affects the child.
A
divorce court can invalidate any terms of a pre-nuptial
agreement relating to alimony that would cause one of the
parties to receive public assistance.
Any pre-nuptial agreement can
be challenged in a divorce. However, the Premarital
Agreement Act limits the ways in which the agreement can
be challenged. To have the agreement declared
unenforceable, a person must prove one or more of the
following:
The person challenging the agreement did not
enter into it voluntarily.
The agreement was "unconscionable"
when it was executed or is so at the time of the
divorce. The U.S. Supreme Court has defined an
unconscionable contract as one "which no man in
his senses, not under delusion, would make, on the one
hand, and which no fair and honest man would accept,
on the other."
The person challenging the agreement was not
given a "fair and reasonable disclosure" of
the other party's assets, debts and income. The
Connecticut Supreme Court has said the following in
regard to what is fair and reasonable disclosure:
The
purpose of disclosure is to make sure that a
person has sufficient knowledge of the other
person's financial circumstances to understand the
legal rights that he or she is giving up.
What a person discloses is more important
than when it is disclosed.
The
focus for deciding whether proper disclosure was
made must be on the actions of the disclosing
person rather than on the person to whom
disclosure is made. In other words, a person
who fails to properly disclose information cannot
blame the other person for failing to discover the
information.
Full
financial disclosure is required in a prenuptial
agreement only if the person to whom disclosure is
made does not have independent knowledge of the
other person's financial circumstances.
If proper disclosure is made, it does not
matter that the other person did not understand or
review the information.
A person who does not understand the
disclosure or the agreement should wait until he
or she understands it before signing the
agreement.
The person challenging the agreement was not
given a reasonable opportunity to consult with his or
her own lawyer before entering into the agreement.
The
person must have had sufficient time before the
marriage to consult with an attorney other than
the attorney representing the person's future
spouse.
The
person need not actually consult with an attorney
as long as he or she was given enough time to do
so.
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