Many couples plan for the possibility of divorce by completing a written agreement that declares how assets should be divided. When a couple completes this document before they get married, they have drafted a prenuptial agreement. This is compared with a postnuptial agreement, which is completed after the couple marries but before the couple separates.
Courts in Connecticut have outlined several differences between the two types of contract. These differences could determine whether or not a court will accept your specific agreement in court. Read on to see how the court is likely to make its decision.
Pre-Nup: Important Factors for court approval
Connecticut courts will accept or reject a prenuptial agreement based on the following factors, outlined in C.G.S. 46b – 36g
Voluntariness – If there is evidence that one of the parties was coerced into signing the agreement or signed under duress, including threats, violence, constraints, or other action.
Unconscionability – The agreement should not be so one-sided or unfair that it “shocks the conscience.”
Full disclosure of assets – Both parties should fully inform their spouse of what assets they are bringing into the marriage.
Opportunity to Consult with Attorney – Each spouse should have had the chance to speak with an attorney; one who does not represent the other spouse.
Post-Nup: Higher Level of Scrutiny
The court will treat a postnuptial agreement with what is known as “Special Scrutiny.” Special scrutiny essentially means that the court will use more available factors than the ones described. You won’t find a specific Connecticut statute on postnuptial agreements, but the courts have developed a specific caselaw over the years.
Landmark Case: Bedrick v. Bedrick (CT. 2011)
This was the first time the Connecticut Supreme Court dealt with post-nup agreements. According to the Supreme Court, a post-nup agreement should be “fair and equitable at the time of execution and not unconscionable at the time of dissolution.”
Post-Nup: Totality of the Circumstances Test
Under Bedrick, the court will study all available information to make its decision whether a post-nuptial should be enforced. This includes all the factors described above, such as asset disclosure and voluntariness. It can also include factors including:
- the nature and complexity of the agreement’s terms,
- the extent of and disparity in assets between the spouses,
- the parties’ respective age, sophistication, education, employment, experience, prior marriages, or
- other traits potentially affecting the ability to read and understand an agreement’s provisions.
Post-Nup agreements are written in a different context, leaving more possibility for unfair bargaining
The special scrutiny standard sets a higher burden for entering a postnuptial agreement. The court’s reasoning for this heightened standard is that there is a risk of unfair advantage after the parties have married and combined assets. The threat of separation, and everything that comes with it, can create an unfair bargaining advantage for one party.
Where to find help – Pre-Nup & Post-Nup lawyer – Lori Bartinik, Esq.
If you are going through a separation and there is either a pre-nuptial or post-nuptial agreement around, you may wish to speak with an experienced family law attorney. Lori Bartinik, Esq. is an expert family law attorney with over 30 years of experience in the Connecticut court system. Don’t sell yourself short! Call Lori Bartinik at The Bartinik Law Firm LLC today at 860-444-8521. Don’t forget to read some of our Google reviews.