Civil Union Pre / Postnuptial Agreements and Property Contracts

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• Prenuptial Agreements
• Postnuptial Agreements
• Property Settlement Agreements, Relationship Agreements & Contracts

Prenuptial Agreements

If you are a gay or lesbian couple planning to enter into marriage or Civil Union in any state, you may wish to execute a Prenuptial (Pre-marital) Agreement. In the event that your marriage or Civil Union later terminates, a court may determine the distribution of your assets if you and your spouse can not agree. Planning in advance could save you time, money, and unanticipated problems.

A Prenuptial Agreement is a contract enforceable by a court of law that clearly details how real and personal property will be distributed upon divorce. For example, Person A lives in a home that has been in her family for three generations. Upon their marriage, Person B will move into the home but it is the couple’s mutual intention and understanding that if the marriage should terminate, Person B will move out and will have no claim or interest in the title to the home. The specific details of that agreement should be memorialized in a formal written and properly executed Prenuptial Agreement.

Along the same lines, imagine that Person B will enter the marriage owning a large collection of rare and valuable paintings. The parties may agree in writing — prior to entering into the marriage — that upon termination of the marriage, Person A will have no claim or interest in that collection of paintings and Person B will retain all rights and interest in the collection.

The Connecticut legislature enacted Public Act 95-170 which went into effect on October 1, 1995 and became applicable to all premarital (prenuptial) agreements executed on or after that date. The Act was codified as Connecticut General Statues Sec. 46b-36a through 46b-36j.

The text of C.G.S Sec. 46b-36d explicitly states that “(a) Parties to a premarital agreement may contract with respect to:

• (1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
• (2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
• (3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
• (4) The modification or elimination of spousal support;
• (5) The making of a will, trust or other arrangement to carry out the provisions of the agreement;
• (6) The ownership rights in and disposition of the death benefit from a life insurance policy;
• (7) The right of either party as a participant or participant’s spouse under a retirement plan;
• (8) The choice of law governing the construction of the agreement; and
• (9) Any other matter, including their personal rights and obligations.

(b) No provision made under subdivisions (1) to (9), inclusive, of subsection (a) of this section may be in violation of public policy or of a statute imposing a criminal penalty.

(c) The right of a child to support may not be adversely affected by a premarital agreement. Any provision relating to the care, custody and visitation or other provisions affecting a child shall be subject to judicial review and modification.”

Under current Connecticut law, “ a premarital agreement becomes effective upon marriage unless otherwise provided in the agreement.” Sec. 46b-36f states, “ after marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties . The amended agreement or the revocation shall be enforceable without consideration.

Finally, Sec. 46b-36g states that, “(a) A premarital agreement or amendment shall not be enforceable if the party against whom enforcement is sought proves that:

• (1) Such party did not execute the agreement voluntarily; or
• (2) The agreement was unconscionable when it was executed or when enforcement is sought; or
• (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.
• (b) If a provision of a premarital agreement modifies or eliminates spousal support and such modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such eligibility.
• (c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.”

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Postnuptial Agreements

A Postnuptial Agreement is a contract enforceable by a court of law that clearly details how real and personal property will be distributed upon divorce . Postnuptial Agreements are executed by couples AFTER marriage.

In the case Bedrick v. Bedrick , released on April 26, 2011, the Connecticut Supreme Court set forth, for the first time, the applicable legal standards for postnuptual agreements in this state. According to the Court:

“Because of the nature of the marital relationship, the spouses to a postnuptial agreement may not be as cautious in contracting with one another as they would be with prospective spouses, and they are certainly less cautious than they would be with an ordinary contracting party. With lessened caution comes greater potential for one spouse to take advantage of the other. This leads us to conclude that postnuptial agreements require stricter scrutiny than prenuptial agreements. In applying special scrutiny, a court may enforce a postnuptial agreement only if it complies with applicable contract principles, and the terms of the agreement are both fair and equitable at the time of execution and not unconscionable at the time of dissolution.”

The Court then defined what constitutes a fair and equitable postnuptial agreement:

[T]he terms of a postnuptial agreement are fair and equitable at the time of execution if the agreement is made voluntarily, and without any undue influence, fraud, coercion, duress or similar defect. Moreover, each spouse must be given full, fair and reasonable disclosure of the amount, character and value of property, both jointly and separately held, and all of the financial obligations and income of the other spouse. This mandatory disclosure requirement is a result of the deeply personal marital relationship.”

The Court also directed how a court shall determine the validity of a postnuptial agreement and how to determine if it is fair and equitable:

[I]n determining whether a particular postnuptial agreement is fair and equitable at the time of execution, a court should consider the totality of the circumstances surrounding execution. A court may consider various factors, including ‘‘the nature and complexity of the agreement’s terms, the extent of and disparity in assets brought to the marriage by each spouse, the parties’ respective age, sophistication, education, employment, experience, prior marriages, or other traits potentially affecting the ability to read and understand an agreement’s provisions, and the amount of time available to each spouse to reflect upon the agreement after first seeing its specific terms . . . [and] access to independent counsel prior to consenting to the contract terms.”

And how to determine if a postnuptial agreement is unconscionable at the time of dissolution of the marriage:

“With regard to the determination of whether a postnuptial agreement is unconscionable at the time of dissolution, ‘‘[i]t is well established that [t]he question of unconscionability is a matter of law to be decided by the court based on all the facts and circumstances of the case.” (Internal quotation marks omitted.) Crews v. Crews, supra, 295 Conn. 163. ‘‘The determination of unconscionability is to be made on a case-by-case basis, taking into account all of the relevant facts and circumstances.” Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 89, 612 A.2d 1130 (1992). Unfairness or inequality alone does not render a postnuptial agreement unconscionable; spouses may agree on an unequal distribution of assets at dissolution. ‘‘[T]he mere fact that hindsight may indicate the provisions of the agreement were improvident does not render the agreement unconscionable.” (Internal quotation marks omitted.) Lipic v. Lipic, 103 S.W.3d 144, 150 (Mo. App. 2003). Instead, the question of whether enforcement of an agreement would be unconscionable is analogous to determining whether enforcement of an agreement would work an injustice. Crews v. Crews, supra, 295 Conn. 163. Marriage, by its very nature, is subject to unforeseeable developments, and no agreement can possibly anticipate all future events. Unforeseen changes in the relationship, such as having a child, loss of employment or moving to another state, may render enforcement of the agreement unconscionable.

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Property Settlement Agreements, Relationship Agreements & Contracts For Same-Sex Couples

If you and your same-sex partner choose not to enter into marriage or Civil Union, you may still execute a valid Property Settlement Agreement, Relationship Agreement or contract that will clearly detail specific important terms in the event that your relationship terminates . Similar to the Prenuptial Agreement discussed in the above section, such a document is a contractual agreement that allows committed same-sex couples to decide how important issues (such as the division of real property) will be handled in the event of a break-up.

In Boland v. Catalano, 202 Conn. 333, 339, 521 A.2d142 (1987), the Court held that, “cohabitation alone does not create any contractual relationship, or unlike marriage, impose any other legal duties upon the parties.” However, for many committed same-sex couples, their financial lives are co-mingled, they jointly hold title to real property, automobiles, recreational vehicles, and the like. Many couples have spent decades together in a committed relationship without the option of entering into legally valid marriage or Civil Union.

Just as marriages and Civil Unions sometimes end in divorce, committed same-gender couples without a formal legal relationship may find themselves splitting up, even after many years together. Although same-sex marriages and previously, Civil Unions have become a reality in Connecticut, not all couples will (or should) choose this legal option.* For that reason, it is often prudent to prepare in advance for such difficult situations, so that decisions can be made while the parties are thinking rationally and without the interference of hurtful or devastating emotions.

For more information on issues to consider prior to entering into marriage in the State of Connecticut, please click on the following link: Connecticut Marriage & Civil Unions For Lesbians and Gays .

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