An Introduction to Postnuptial Agreements

Tabloid reports of Matt Lauer’s impending divorce seem tosurface nearly every day. It is reportedthat Matt Lauer and his wife, Annette Roque, entered into a post-nuptialagreement in 2006. And he is not the only celebrity rumored to have apost-nuptial agreement: Beyoncé and Jay-Z reportedly have one too. Many are familiar with the unromantic documentknown as a prenuptial or premarital agreement which, in Connecticut, is “anagreement between prospective spouses made in contemplation of marriage.” C.G.S. §46b-36b. The pre-marital agreement canaddress issues such as the division of property and alimony in the event of adivorce. C.G.S. § 46b-36d. But, what is a post-nuptial agreement, whatis its purpose, and is it enforceable upon divorce?

Postnuptial agreements are agreements made by individuals who arealready married. Like pre-maritalagreements, postnuptial agreements address the division of property and alimonyin the event of a divorce. There are multiplereasons couples enter into postnuptial agreements. For example, if one spouse has misbehavedduring the marriage, the misbehaving spouse may make financial promises to theinnocent spouse to incentivize the innocent spouse to remain in the marriage. A postnuptial agreement can memorialize those promises.

In 2011, the Connecticut Supreme Court approved of the use ofpost-nuptial agreements in Bedrick v.Bedrick, 300 Conn. 691 (2011). Indetermining whether postnuptial agreements are enforceable at the time of adivorce, the court held that those agreements must be subject to specialscrutiny. The rationale is that whileparties have greater negotiating power prior to marriage, parties who arealready married may use the threat of divorce to gain a better advantage in thenegotiating of a post-nuptial agreement.

Special scrutiny means that the agreement must be fair andequitable at the time of execution and not unconscionable at the time ofdivorce. A court may consider a varietyof factors in determining whether a post-nuptial agreement is fair andequitable at the time of execution. Suchfactors include the complexity of the agreement, the difference in assetsbrought to the marriage by each party, the parties’ education levels,employment, the number of prior marriages, ages, and the ability of each partyto understand the agreement. Each partymust make full and fair financial disclosure at the time of signing. A post-nuptial agreement is unconscionable ifthe enforcement of the agreement would work an injustice.

A carefully constructed postnuptial agreement can help save amarriage. If it doesn’t, it can make thefinancial outcome of a divorce less uncertain. If you think a postnuptial agreement may be right for you and yourspouse, contact the lawyers of Ferro, Battey & Eucalitto, LLC for moreinformation.