As discussed in Part I of this series, many clients come to our office from various towns in Connecticut, including Greenwich and Westport wondering whether a Postnuptial Agreement is a good legal option available to them. Once a client decides that a Postnuptial Agreement is appropriate, the next step is ensuring that a court will enforce it. When courts analyze the enforceability of a Postnuptial Agreement, they apply a higher standard of scrutiny than they do in assessing other types of contracts. This is because unlike many other contracts, upon entrance into a Postnuptial Agreement, husbands and wives share a special fiduciary relationship, and typically trust one another. Bedrick v. Bedrick, 300 Conn. 691 at 698 (2011) at 702. As a result, the parties often proceed less prudently than they would when entering into other types of agreements.
The courts apply a two part test when they examine the enforceability of a Postnuptial Agreement. The first part of the analysis for a court is assessing whether the Postnuptial Agreement is fair and equitable at the time of signing. In order for the Postnuptial Agreement to be fair and equitable at the time of signing, the parties to a Postnuptial Agreement must consent to the terms of the agreement, without undue influence, fraud or duress. Additionally, the parties must be provided with an opportunity to read and fully understand the terms of the Agreement. Courts will consider each party’s educational background, vocational experience, his or her age, and any other factors, which might affect his or her understanding of the Postnuptial Agreement at the time of execution. Prior to execution, both parties must also be provided with full disclosure of the value of the other party’s property, both real and
personal, as well as the other party’s income and liabilities. Additionally, the parties must have been provided with an adequate amount of time to consult with and review the terms of the Postnuptial Agreement with counsel. Courts will examine all of these factors and the terms of the Postnuptial Agreement under the totality of the circumstances in order to determine whether the Agreement was fair and equitable at the time of execution.
Additionally, Postnuptial Agreements must not be unconscionable at the time of dissolution. Postnuptial Agreements are unconscionable if they would work an injustice to either party; unfairness or inequity alone is not enough. For example, even if an Agreement results in an inequitable distribution of the assets and liabilities, this does not mean that the agreement is unconscionable. While this may seem straightforward, as the Connecticut Supreme Court notes in Bedrick, no agreement can possibly anticipate all future events, including the loss of a job, or even relocation to another state. As a result of these unforeseen circumstances, at the time of dissolution a term which originally resulted in an unequal distribution of the assets, may now work an injustice to either party. At Broder & Orland, LLC, our lawyers are well versed in the complexities of a Postnuptial Agreement and the issues that arise concerning enforceability. We are adept at helping clients navigate through the process.