A post-nuptial agreement is signed after a couple marries. The agreement can address the same issues which a pre-nuptial agreement would. For example, alimony, property distribution and other financial considerations upon a divorce can be set forth in a post-nuptial agreement.
Post-nuptial agreements are legally permissible in Connecticut. Courts have held that these agreements are consistent with public policy of mature adults managing their financial affairs. Furthermore, the agreements alleviate uncertainty about legal rights and obligations if the marriage ends in divorce.
However, post-nuptial agreements are subject to higher level of scrutiny by a court than a pre-nuptial agreement since a spouse who wants to preserve a marriage is a fundamentally different position than a fiancee who has the option not to marry.
A court will determine whether a post-nuptial agreement is valid and if so whether the agreement should be enforced. In making this determination Courts will examine the agreement at two points: at the time of the execution (signing) and at the time of enforcement (divorce).
In deciding whether the agreement is valid a court will consider whether the agreement was entered into voluntarily without any undue influence, duress, fraud or coercion. There must be also be fair and full financial disclosure within a reasonable time before signing the agreement.
A court will also consider whether enforcing the agreement would be “unconscionable.” Or put another way – will enforcing the agreement at the time of the divorce amount to an injustice? A major consideration in this analysis is a dramatic change in the economic circumstances of the spouses from the time of execution to the time enforcement.
Post-nuptial agreements can be a useful tool to avoid extensive and costly divorce litigation. However, the ultimate validity and enforcement of the agreement will depend on whether formalities were observed as well the circumstances of a particular case.
Please contact me to discuss post-nuptial agreements in Connecticut.