Prenuptial agreements are a natural outgrowth of my matrimonial and family law practice. Most of my practice involves divorce, but, after all, “matrimonial” means matters related to marriage. Prenuptial agreements are in the nature of preventive law and are consistent with my basic policy of educating and empowering clients to make the right choices for themselves and their families and in particular, helping clients minimize both actual and potential family conflict.
What is a Prenuptial Agreement?
A prenuptial agreement, sometimes called a premarital or ante-nuptial agreement, is a contract between prospective spouses made in contemplation of marriage. Prenuptial agreements largely are directed toward two possibilities: divorce and death. In both instances, the two prospective spouses to such an agreement generally desire to (a) have the financial estates they have built up kept separate, to one degree or another, for the benefit of themselves or their prior families, and (b) arrange for financial support, where appropriate, in advance.
Is a Prenuptial Agreement Binding?
If there is a prenuptial agreement and one of the parties dies or there is a divorce, the agreement is binding and is controlling in many instances and persuasive in others. We cannot guarantee to clients who sign a prenuptial agreement that the agreement will be carried out by the spouses or found valid by a court. However, prenuptial agreements are generally recognized and enforced by Connecticut courts. An agreement is more likely to be enforceable and recognized by a court if:
- before signing the agreement both parties received a fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party, both parties had a reasonable opportunity to consult and consulted with independent legal counsel,
- the party against whom the agreement is being enforced entered into it voluntarily, for example without duress, (for this reason it is not advisable to sign a prenuptial agreement immediately before the wedding, rather taking time months in advance to negotiate and finalize), and
- the agreement was not so one-sided that it was unconscionable when entered into and is not unconscionable at the time one party is seeking to enforce it.
Do I Need a Prenuptial Agreement?
- Prenuptial agreements are appropriate in certain instances and not in others. To some people the mere fact of having a written contract implies a level of distrust and a contract could be viewed as a negative way to start a new marriage. However, under specific situations, such agreements are positive and prudent, representing responsible action by the prospective married couple.
- One group likely to be candidates for prenuptial agreements are couples with children from a previous marriage. Each spouse wants to ensure that her or his assets pass at death, or in the event of divorce, to her or his children.
- A second group of candidates for prenuptial agreements are people who have been married previously, have had a negative experience with divorce and want to avoid a second such experience.
- A third group of candidates are couples where one party has or will have through inheritance, family gifts or other ways, significantly more assets than the other. The wealthier partner wants to protect assets that he or she has acquired or will acquire without any contribution from the prospective spouse. The process of preparing the agreement can itself serve to eliminate suspicion and misunderstanding about each partner’s financial situation because each must fully disclose financial and other facts.
What is Your Role?
Prenuptial agreements involve much more than simply drafting an agreement. I gather and evaluate substantial financial information, prepare a draft of the agreement, meet with clients as often as needed and counsel clients in detail about the pros and cons of various provisions in the agreement. Often I will recommend to clients and subsequently work with accountants, investment advisors or estate planning attorneys to ensure that the final prenuptial agreement satisfies the particular needs and objectives of each client. Especially when the prospective spouses want the premarital agreement to address spousal rights upon death rather than divorce, the services of an estate planning attorney can be critical.
I have developed worksheets and checklists for securing information and making sure that we cover the many items related to shaping an enforceable prenuptial agreement. These also are mechanical means of holding down legal expenses.
The Prenuptial Agreement Worksheet includes background information relevant to my work on such an agreement. And, because the primary consideration in such agreements is finances, we often use financial worksheets and specialized software.
Prenuptial agreements can relate directly to the wills of the two parties. Wills and estate planning in general are increasingly complex and technical areas of the law. Because my practice is limited to family law, we do not prepare wills. I have referred many clients to other lawyers who do considerable estate planning and in whom I have confidence.