In general terms, a Prenuptial Agreement is a contract that two people sign prior to getting married. Prenuptial Agreements can be appropriate in a variety of situations, including second marriages, marriages in which one or both parties wants to protect his or her premarital assets, marriages in which a party has an interest (or will acquire an interest during the marriage) in a closely held business, including a family business, and marriages in which one or both parties anticipates receiving a substantial inheritance during the marriage.
A Prenuptial Agreement can be used to address each party’s rights and obligations with respect to property held by the other, whether acquired before or during the marriage, and each party’s rights to buy, sell, transfer, mortgage, encumber, dispose of, or otherwise control and manage property during the marriage. Prenuptial Agreements address the disposition of property upon separation, divorce, and/or death and can be used either to establish the terms for or to eliminate spousal support in the event of a divorce.
Parties can use a Prenuptial Agreement to provide for the ownership of life insurance policies, how the proceeds from life insurance policies will be disposed of upon a party’s death, and the rights of each party to the other party’s retirement plan. Prenuptial Agreements will also state what state law will apply in enforcing or interpreting the agreement.
Under Connecticut law, the right of a child to support cannot be adversely affected by a Prenuptial Agreement. Additionally, any custody or visitation arrangements contracted to in a Prenuptial Agreement are subject to review and change by a Court at the time of a divorce. In other words, while a couple can set forth child support and child custody terms in a Prenuptial Agreement, there is no guarantee that those terms would be upheld by a Court in the event of a divorce.
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 or have the Court decide any issues not set forth in their Prenuptial Agreement.
If the parties are unable to agree as to whether the Prenuptial Agreement will govern the terms of their divorce, the question of whether a Prenuptial Agreement is enforceable is decided during the divorce case, either as a preliminary matter or at the end of the case.
At Broder Orland Murray & DeMattie LLC, we frequently consult with clients who have questions about whether a Prenuptial Agreement would be right for them and we have significant experience representing clients who want to best protect themselves in the drafting and negotiation of a Prenuptial Agreement.