My parents were married right before Valentine’s Day in 1960. Their bridesmaids carried heart-shaped bouquets and wore red lace dresses over taffeta. My parents remained married until my father passed away, and had they both still been alive today, they would have been celebrating their 65th Wedding Anniversary this month. I will still mark the occasion, and go to the cemetery and bring flowers because true love never dies.
But in this day and age, marriages don’t tend to last like my parents’ did. “They” say 50% of all marriages end in divorce. With that statistic alone in mind, it would behoove folks thinking of getting married to consider a Pre-Nuptial Agreement.
Of course, no one likes to talk about such things when they are picking out rings and saying “yes” to the dress. But I am the self-proclaimed Queen of talking about things no one wants to talk about. So let’s examine the proposition and unpack the process. Maybe if we look closely at it, we can shake the stigma.
Last year, I wrote in this space that there is a huge misconception that you need to be rich or own a business or lots of real estate or be a celebrity to necessitate a Prenuptial Agreement. That still holds true and is likely the single biggest reason why people don’t get them.
But Pre-Nups are just insurance policies. They are meant to protect you in case of divorce no matter what your financial status is going into the marriage.
Another reason people balk at them may be the cost involved. The process does usually include the use of legal counsel, and it always includes an exchange of financial information and a lengthy written agreement. But the return on investment may be priceless in the long run.
Pre-Nups are also known as Prenuptial Agreements, Premarital Agreements and Antenuptial Agreements. Here in our state, Pre-Nups made after 1995 are governed by the Connecticut Premarital Agreement Act which can be found in Connecticut General Statutes 46b-36a to 36j. (Pre-Nups made prior to October 1, 1995 are not subject to the Act, rather they are subject to case law, specifically McHugh v. McHugh.)
According to the current statute, the definition of a Pre-Nup is “an agreement between prospective spouses made in contemplation of marriage.” It further states that it “shall be in writing and signed by both parties” and it “becomes effective upon marriage unless otherwise provided in the agreement.”
The statute goes on to enumerate what the contents of a Pre-Nup can be. Examples of what they may contain are (paraphrased): (1) the right to buy, sell, manage and control property, (2) the disposition of property upon divorce, (3) modification or elimination of alimony, (4) estate and retirement planning, (5) choice of governing law, (6) any other matter and (7) nothing illegal.
After reading this list, it may beg the question “what about children, custody and child support?” The statute specifically states “the right of a child to support may not be adversely affected by a premarital agreement. Any provision relating to the care, custody and visitation or other provisions affecting a child shall be subject to judicial review and modification.” A plain meaning of this is that you could include provisions about children, custody and child support but they are likely going to be changed based on the best interest of the child[ren] at the time of the divorce. So, in practice, I almost always leave out language about after born children in my Pre-Nups.
During the course of my practice, I have taken on clients in divorce matters who had Pre-Nups but didn’t want to follow them. The statute contemplates this and states “a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation shall be enforceable without consideration.” In this situation, we add a clause to the Separation Agreement that references the statute and states clearly that the parties wish to revoke the Pre-Nup by agreement.
If, on the other hand, one party wants to enforce the Pre-Nup and the other doesn’t, the Pre-Nup can be attacked. The statute provides for that as well.
Pre-Nups must be entered into voluntarily, they cannot be unconscionable, each party must fully disclose their finances to the other, including income, expenses, assets and liabilities. I have my clients do this in writing under oath through the mutual exchange of Financial Affidavits.
Oftentimes, two attorneys are involved in the making of a Pre-Nup: one attorney drafts the agreement for one spouse, and the second attorney acts as what I like to call “review counsel.” This second attorney is not required, however, it is encouraged. Connecticut case law holds in Friezo v. Friezo, that the party against whom enforcement is sought should have a “reasonable opportunity” to consult with independent counsel. I have acted in both capacities over the years; and my most given advice overall is: don’t sign anything without consulting a lawyer first!
So, you see, Pre-Nups are nothing to be scared of. More people should consider them.