Written by Connecticut Family Law Attorney Jocelyn B. Hurwitz
In Connecticut and many other states, people getting married have the ability to prepare for divorce even before they walk down the aisle. The concept might sound a bit pessimistic, but it’s actually a responsible measure to take and a helpful precaution.
An unmarried couple can enter into an agreement that addresses the division of their income, property, debt, and other personal matters upon divorce, legal separation, annulment, or if one spouse predeceases the other. This is typically referred to as a “premarital agreement” or “ante-nuptial agreement.”
In preparation for the event that one spouse dies, parties may wish to specify ahead of time that the surviving spouse gets to remain in a jointly owned residence for a period of time, and that his or her living arrangements will be financially supported. When married parties have children from prior marriages, a premarital agreement can anticipate and prevent disputes between those children and the existing spouse.
No one wants to think about divorce when they are getting married, but we don’t generally like to think about death when we are young and healthy either. That doesn’t mean that it’s not important to do so. And in fact, a strong premarital agreement can play a role similar to life insurance--both spouses hope they never need it, but if they do, they will be glad they have it.
Premarital Agreement Guidelines
In order for parties to create a binding and worthwhile premarital agreement, Connecticut law requires that certain guidelines be followed before signing on the dotted line:
- The agreement must be entered into voluntarily by both parties. Neither party may coerce the other to enter into such an agreement. Ideally, a premarital agreement is not completely one-sided, but provides each spouse with something that he or she is looking for--security, financial independence, or an ability to plan for his or her future. When both parties have competent counsel, their attorneys can often suggest legal provisions and compromises that will meet the needs and goals of both parties in the event that their marriage does not work out.
- Each party must have the opportunity to consult with an independent lawyer who can advise him or her on all aspects of the agreement.
- Each party must give the other and his or her attorney complete and accurate financial disclosure documents that help the parties make informed decisions and negotiate effectively.
- Negotiations and finalization of the agreement should take place well in advance of the wedding date, so that neither spouse-to-be feels undue pressure to enter into such an agreement.
Limitations of Premarital Agreements
Premarital agreements have limitations. For one thing, in Connecticut and some other states, they cannot include provisions regarding custody of children following a divorce, legal separation, or annulment, and they cannot deny either party from seeking child support from the other party.
Moreover, entering into a premarital agreement in Connecticut or whichever state you live in, is not a guarantee that both parties will accept its terms and go their separate ways without litigation if the marriage ends. Parties are still entitled to argue over whether the agreement is “unconscionable,” meaning whether it is so one-sided that a judge should not enforce its terms. Parties can also argue over the meaning of certain terms contained within a premarital agreement. Like any contract, a premarital agreement may include provisions that are ambiguous. In that instance, parties may have differing opinions about how to interpret those provisions. Some premarital agreements include provisions regarding division of assets, leaving alimony to be determined by a judge at a later date. Accordingly, the parties may find themselves in court arguing over spousal support even after they have divided their assets.
Consider Your Goals Before Entering A Premarital Agreement
Prior to approaching a significant other about a premarital agreement, each spouse-to-be should think about his or her goals well in advance of the wedding preparations. A good premarital agreement provides security but some flexibility for changes in circumstances that the parties may experience in the course of a long marriage. Parties can set the stage for a successful marriage by having difficult conversations about money before they say “I do.” Instead of viewing this as a negative way to prepare for a marriage, look at it as a means of establishing joint goals and expectations. If you are considering entering into a premarital agreement with your spouse, you should first consult with a lawyer to determine what types of provisions are valid in your state, and to begin to develop a list of priorities that will inform your negotiation strategy.
Jocelyn B. Hurwitz is a principal and chair of Cohen and Wolf’s Family Law Group in Bridgeport, Connecticut. She practices in the fields of family law litigation and mediation, and serves on the Board of the Connecticut Council for Divorce Mediation and Collaborative Law.