What Every Young Lawyer Needs to Know About Prenuptial Agreements in Connecticut

BY JILL H. BLOMBERG

Chances are, no matter what type of law you practice, you have had a client, friend, family member, acquaintance, ex-girlfriend, boyfriend, or mere acquaintance at a cocktail party ask you what the law is regarding prenuptial agreements in Connecticut. As a young lawyer (and for those of us not so young lawyers) this subject is broached time and time again. So…in a nutshell, what do you need to know?

The law regarding premarital (also known as prenuptial or antenuptial) agreements executed before October 1, 1995, in Connecticut is set forth in depth in the benchmark Connecticut Supreme Court case of McHugh v. McHugh, 181 Conn. 482 (1980). The McHugh decision created certain prerequisites which must be met before a prenuptial agreement is enforceable.

The McHugh court stated that prenuptial agreements are generally enforceable where the court finds: 1) the prenuptial agreement was validly entered into; 2) its terms do not violate any Connecticut statute or public policy; and 3) the circumstances of the parties at the time the premarital agreement is questioned are not so beyond what the parties contemplated at the time the prenuptial agreement was entered into as to cause its enforcement to work injustice.

However, just when we thought we knew all there was to know about premarital agreements, on October 1, 1995, the Connecticut Legislature passed the Premarital Agreement Act, which applies to all premarital agreements in the State of Connecticut executed after that date.

According to the Connecticut Premarital Agreement Act, a premarital agreement shall not be enforceable if the party against whom enforcement is sought proves that: 1) such party did not execute the agreement voluntarily; 2) the agreement was unconscionable when it was executed or when enforcement is sought; 3) before execution of the agreement, such party was not provided a fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party; or 4) such party was not afforded a reasonable opportunity to consult with independent counsel. Courts, in deciding the enforceability of a premarital agreement, will look at the factors of the Premarital Agreement Act as well as the current caselaw.

While McHugh and the Premarital Agreement Act both discuss the concept of what is unenforceable, one must turn to further caselaw for a practicable sense of under what scenarios a court will deem a premarital agreement to be invalid.

In reviewing four recent cases decided under McHugh (based upon the fact that the agreements in question were executed before October 1, 1995), it is clear that Connecticut courts have found that the execution of a premarital agreement could be invalid for various reasons including: 1) minimal or insufficient financial disclosure; 2) the inability to consult with independent counsel; or 3) a finding of duress. The McHugh unconscionable circumstances test would also result in a finding of unconscionability. Moreover, one Connecticut Superior Court judge has found that the mere doubling of assets amounts to unconscionability. It is this issue that has caused most strife in the courts and, of course, among the clients.

Questions are often raised as to what exactly can parties contract to do (or not to do) in a prenuptial agreement. The Connecticut Premarital Agreement Act is clear: parties to a premarital agreement may contract to many things including, among other things: 1) the rights and obligations of each of the parties and any of the property of either or both of them whenever and wherever acquired or located; 2) the right to buy or sell property; 3) the disposition of property upon separation, marital dissolution, death or the occurrence or non occurrence of any other event; 4) the modification or elimination of spousal support; 5) the making of a will or trust to carry out the provisions of the agreement; 6) the ownership rights in and disposition of the death benefit from a life insurance policy or retirement plan; 7) the choice of law governing the construction of the agreement; and 8) any other matter, including the parties’ personal rights and obligations.

Probably because the subject is of an intimate nature, at least one court from another state has been extremely reluctant to recognize the validity of prenuptial agreements designed to micromanage the sexual relationship of the parties. Moreover, while there have not been any reported cases in Connecticut, the likelihood is that courts would be unwilling to enforce premarital agreements setting forth the specific living arrangements of spouses. While not necessarily violating “public policy,” such agreements may violate human nature. Aside from sexual provisions, these agreements might include provisions with respect to parties ‘choice of domicile, parties’ living arrangements and parties’ religious practices.

To sum up, there are no guarantees when it comes to the enforceability of prenuptial agreements. The one thing that is clear is that the courts will take a serious look at the circumstances of the parties at the time of execution and at the time the agreement is called into question.

Therefore, if that distant cousin calls you and asks that you handle his or her prenuptial agreement, do yourself a favor and review two scholarly and informative articles on premarital agreements, both drafted by Attorney Louis I. Parley, and both found in the Connecticut Bar Journal1. You will not be sorry you did.

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Jill H. Blomberg of Schoonmaker, George & Colin, P.C. in Greenwich is a member of the Connecticut Bar Association, the Stamford/Norwalk Regional Bar Association and the New York county Lawyers Family Law Section. She serves as the chair and co-chair respectively of the Family Law and Child Advocacy Sections of the American Bar Association Young Lawyers Division and the Connecticut Bar Association’s Young Lawyers Section.

NOTE

• 1.SeePremarital Agreements in Connecticut, 57 C.B.J. 487 (1983) and Premarital Agreements in Connecticut: Where We Are and Where Are We Going, 69 C.B.J. 495 (1995).

CONNECTICUT’S VISITATION STATUTE AFTER TROXEL V. GRANVILLE

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process of law…” Amendment Fourteen, Section One to the United States Constitution.

13. Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

14. Opinion of O’Connor, J. at p. 7.

15. See Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Prince v. Massachusetts, 321 U.S. 158 (1944); and Stanley v. Illinois, 405 U.S. 645 (1972).

16. Opinion of O’Connor, J. at pp. 14-15.

17. Opinion of O’Connor, J. at p. 8.

18. Id.

19. Opinion of O’Connor, J. at p. 9.

20. Opinion of O’Connor, J. at p. 11.

21. Opinion of O’Connor, J. at p. 14.

22. Opinion of Souter, J. at p. 2.

23. Id.

24. Opinion of Thomas, J. at p. 1.

25. Opinion of Thomas, J. at p. 2.

26. Opinion of Stevens, J. at p. 7.

27. Opinion of Scalia, J. at p. 2.

28. Opinion of Scalia, J. at p. 3.

29. Opinion of Kennedy, J. at p. 6.

30. Id.

31. Id.

32. Opinion of Kennedy, J. at pp.8-9.

33. 239 Conn. 336, 684 A.2d 1181 (1996). Previous to Castagno, the court deferred the issue of the visitation statute’s constitutionality in Lehrer v. Davis, 214 Conn. 232, 571 A.2d 691 (1990), finding the factual record inadequate.

34. Castagno, 239 Conn. at 345, 684 A.2d at 1186.

35. Id. at 340, 684 A.2d at 1184.

36. Connecticut’s custody statute which, interalia, allows the court to, “make any order granting the right of visitation of any child to a third party, including but not limited to, grandparents.”

37. Connecticut’s third party intervention statute.

38. Castagno, 239 Conn. at 352, 684 A.2d at 1189.

39. Id., at 352, 684 A.2d at 1190.

40. Id., at 355, 684 A.2d at 1191.

41. Id., at 354, 684 A.2d at 1191.

42. See, e.g. Paraskevas v. Tunick, 1997 WL 219831 (Conn. Super. 1997); Laspina-Williams v. Laspina-Williams, 46 Conn. Supp. 165 (Conn. Super. 1999); Antonucci v. Frances-Cameron, 5 Conn. Ops. 297 (Conn. Super. 1999) and Matthews v. Thomasen, 1997 WL 568035 (Conn.Super. 1997).

43. This is similar to the statutory presumption created by C.G.S. § 46b-56b that the best interests of a child is to be in the custody of a parent (in a custody dispute with a non-parent).

44. See note 2 supra and footnote 4 of the Castagno case.