When initiating divorce proceedings, it is not uncommon for individuals to reveal to their attorneys that they had previously considered the possibility of ending their marriage, sometimes even years beforehand. Often, the couple has outlined this potential conclusion to their relationship through an agreement created during the marriage—whether typed on the family computer or jotted down on a restaurant napkin—with the intention of dictating the terms of a possible future divorce.
These intended postnuptial agreements can vary widely, featuring elements such as waivers of alimony, promises to exclude inheritance proceeds, or agreements to keep the marital home as is. Postnuptial agreements, unlike prenuptial agreements—which are overseen by both C.G.S. § 46b-36b et seq. and established case law—had not been explicitly recognized by the Connecticut Supreme Court until recent times, leaving their enforceability in question.
In 2011, the Connecticut Supreme Court established criteria for evaluating the enforceability of postnuptial agreements. Initially addressing whether such agreements contravene public policy, the Court determined they do not. Previously, prenuptial agreements were considered to be against public policy if they encouraged separation or divorce. However, it has been more recently acknowledged that courts should support the private resolution of financial matters between estranged marital partners. Case law now suggests that postnuptial agreements can similarly aid in privately settling family issues by reducing financial uncertainty, allowing couples to concentrate on resolving other marital challenges.
However, the Supreme Court has stipulated that agreements between spouses already married require more rigorous evaluation by trial judges. The Court noted that "spouses do not contract under the same conditions as either prospective spouses or those seeking dissolution." Since married partners tend to exercise less caution in contractual dealings with each other compared to prospective spouses or third parties, there is a greater risk that one spouse might exploit the other.
Consequently, the law now mandates that a trial court may enforce a postnuptial agreement only if it adheres to general contract principles, inclusive of consideration (or "give and take" in simpler terms), if the terms are fair and equitable at the time the agreement is made, and if they are not unconscionable at the time of marriage dissolution. To assess fairness at the time of execution, a court will examine whether the agreement was entered into voluntarily and free from undue influence, fraud, coercion, or duress. Moreover, there must be evidence that each spouse provided the other with full, fair, and reasonable disclosure of their property, assets, financial obligations, and income.
It is also notable that an agreement's unfairness or inequality alone does not make it unconscionable, as spouses can consensually agree to an unequal asset distribution upon dissolution. Courts use a "totality of the circumstances" standard to evaluate whether enforcing a postnuptial agreement is fair and equitable.
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If you have any questions regarding postnuptial agreements in Connecticut, or wish to consult an attorney regarding a legal matter, please contact Joseph C. Maya and the attorneys at Maya Murphy, P.C. at (203) 221-3100 or Jmaya@mayalaw.com to arrange a free initial consultation.
