PRENUPTIAL AGREEMENTS IN CONNECTICUT PART II: THE ENFORCEABILITY

At Broder & Orland, LLC, we often consult with divorce clients from Greenwich, Stamford, Darien, New Canaan, and Westport who entered into Prenuptial Agreements prior to getting married. Naturally, their first question when they arrive in our office is whether or not their Prenuptial Agreement is enforceable. They want to know how likely it is that a Court would uphold the terms of their Prenuptial Agreement if their case were to go to trial.

In some divorce cases, the parties agree at the time of the divorce to abide by the terms of the Prenuptial Agreement. In those relatively simple cases, the divorce judgment will incorporate the provisions of the Prenuptial Agreement and the parties can agree upon any issues not set forth in their Prenuptial Agreement.

Under Connecticut rules of practice, any party seeking the enforcement of a Prenuptial Agreement needs to let the other party know in his or her initial paperwork filed with the Court. For the Plaintiff seeking the enforcement of a Prenuptial Agreement, he or she pleads the Prenuptial Agreement in the divorce complaint. A Defendant seeking enforcement of a Prenuptial Agreement can file an Answer and Cross-Complaint seeking its enforcement. If a party does not wish to have the Prenuptial Agreement enforced, that party has sixty days from the date that the other party claims enforcement of the Prenuptial Agreement to file a reply requesting that the Prenuptial Agreement not be enforced. That party’s reply must state the grounds under which the party is seeking to have the Prenuptial Agreement invalidated. The purpose of these rules is to give each party ample notice early in the case as to the claims of the other with respect to the enforceability of the Prenuptial Agreement.

If the parties are unable to agree as to whether the Prenuptial Agreement will govern their divorce, the question of whether a Prenuptial Agreement is enforceable is decided during the divorce case. Most often, the Court will not decide whether the Prenuptial Agreement is enforceable early in the case and will instead give the parties the opportunity to complete discovery on all issues, including the Prenuptial Agreement, and to present evidence regarding the Prenuptial Agreement at the final divorce trial. What this means is that, if a Prenuptial Agreement precludes the award of counsel fees or temporary alimony during the pendency of a divorce case, the Court could still make orders awarding counsel fees or pendente lite alimony prior to deciding if the Prenuptial Agreement is enforceable. If the Court ultimately determines at the end of the case that the Prenuptial Agreement is, in fact, enforceable, the party who inappropriately had to pay counsel fees or temporary alimony will sometimes receive a credit for those payments.

The enforceability of a Prenuptial Agreement is governed by the state law set forth as the governing law in the Agreement. Under Connecticut law, specifically General Statutes Section 46b-36g(a), a party seeking to have a Prenuptial Agreement invalidated must prove at least one of the following things: 1) that he or she did not execute the Agreement voluntarily, 2) that the Agreement was unconscionable at the time it was signed, 3) that the Agreement is unconscionable at the time of the divorce, 4) that he or she did not have a reasonable opportunity to consult with a lawyer of his or her choosing to obtain advice regarding the Prenuptial Agreement prior to signing it, or 5) that, before the Agreement was signed, he or she was not given fair disclosure of the assets, income, and liabilities of the other party.

At Broder & Orland, LLC, we have extensive experience in settling and litigating cases in which there is a Prenuptial Agreement. The question of whether to claim or oppose enforcement of a Prenuptial Agreement is one of the most important questions in divorce cases involving a Prenuptial Agreement and one that needs to be addressed very early in a divorce case in order to ensure that the Prenuptial Agreement is properly pled before the Court within the time frame permitted by Court rules. Failure to plead within the proper time frame can prejudice a party’s rights. It is important that any party seeking to enforce or invalidate a Prenuptial Agreement consult with an experienced Fairfield County, Connecticut divorce attorney in order to discuss the terms and enforceability of his or her particular Prenuptial Agreement.

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