Most people have heard of and understand the idea of a prenuptial agreement – a contract between prospective spouses establishing their rights and obligations upon divorce or sometimes death. These contract rights and obligations are intended to replace the rights and obligations the couple would otherwise have under the law. Effective prenuptial agreements can minimize conflict and help a divorcing couple focus on their new single lives. Prenuptial agreements have been recognized and enforced in Connecticut for many years.
But a postnuptial agreement – what’s that?
A postnuptial agreement is a contract between spouses establishing certain rights and obligations between them, especially rights and obligations which will become effective if they divorce. The goal of most persons seeking to enter into a post-nuptial agreement is to address the financial consequences of divorce while the marriage is still viable so that their marital conflict and fear is limited and the couple can focus energy and efforts on preserving their marriage.
Like a prenuptial agreement, a postnuptial agreement can be broad, covering divorce, death, property, alimony and other items, or narrow, for example establishing post-divorce ownership of just one certain parcel of real estate.
Is this legal?
Yes. In 2011, the Connecticut Superior Court finally decided that under certain circumstances premarital like agreements entered into during a marriage, in other words postnuptial agreements, are generally recognized under Connecticut law. To be valid, a postnuptial agreement must meet the same tests as a prenuptial agreement – both sides having independent legal representation, an opportunity for full financial disclosure and a real choice about whether to enter into the agreement; and the agreement must be fair when entered into and when the divorce takes place.
However, because of the special relationship that exists between spouses, any particular postnuptial agreement will be subject to an even stricter test before a court will enforce it. This means that it is especially important for anyone considering a postnuptial agreement to consult with an experienced attorney early to a) evaluate the potential validity of the postnuptial agreement and b) create a postnuptial agreement plan.