Understanding Litigation Involving Prenuptial Or Postnuptial Agreements

On Behalf of | Jul 27, 2020 | Divorce, Property Division

Prenuptial agreements involve contracts entered into between prospective spouses in contemplation of marriage. Premarital agreements typically address property division and other financial matters, excluding financial aspects of child support, should the parties later decide to divorce. Some married couples decide to enter agreements during their marriage should they later decide to divorce. These contracts that are executed during the marriage are known as postnuptial agreements.

Prenuptial (sometimes referred to as antenuptial agreements) and postnuptial agreements generally are recognized in Connecticut as binding contracts that become enforceable upon execution. Contract principles apply to these marital agreements. The contract must be fair and equitable at both the time of execution and at the time of enforcement.

When a prenuptial or postnuptial agreement exists at the time of divorce, it is not automatically entered into the issues in the dissolution. A litigant who seeks to enforce the contract must affirmatively raise the issue in the pleadings, identifying the date of execution. Litigants who seek to avoid a prenuptial agreement must specifically file a reply demanding avoidance within sixty days of the time the opposing party raised the issue in the pleadings, unless the court allows the demand for avoidance to be raised at a later date for good cause. The reply must state the grounds to challenge the validity of the agreement.

Connecticut law identifies several bases for evaluating the  enforceability of marital agreements. See, C.G.S.A. § 46b-36g (a). Sophisticated marital lawyers evaluate the details of the agreement in seeking to challenge or enforce a premarital agreement. Questions that need to be analyzed include:

  • Did the litigant enter into the agreement voluntarily?
  • Were the terms of the agreement unconscionable at the time of execution?
  • Are the terms of the agreement unconscionable at the time of dissolution?
  • Did the litigants provide fair and reasonable disclosure of assets prior to execution?
  • Did the litigants have a reasonable opportunity to consult with independent counsel prior to execution?

In some respects, answers to the questions may overlap with other questions. For instance, the proximity of execution of the agreement to the marriage may implicate whether signing the agreement was voluntary, as well as whether the litigant had a sufficient opportunity to consult with independent counsel.

Voluntary Execution

The validity of a contract may involve an inquiry into whether a litigant voluntarily entered into the pact. Evidence of duress or fraud may be relevant in determining whether the litigant voluntarily agreed to sign the agreement. Connecticut courts recognize that timing is an important inquiry for evaluating the voluntariness of a litigant’s execution of a prenuptial agreement. A common factor in invalidating an agreement is presentation of a prenuptial agreement just before a wedding ceremony, on the eve of the wedding, or with no reasonable amount of time to review the terms of the contract. See, e.g. Friezo v. Friezo, 281 Conn. 166 (2007).


Issues involving unconscionability are factually complex. Common problems include a showing that a litigant did not have a meaningful choice, while the other litigant obtained oppressive and unreasonably favorable terms. The analysis is to discover or refute evidence of oppression and unfair surprise. See, Beyor v. Beyor, 158 Conn.App. 752 (2015). Unconscionability may be measured at the time of execution of the contract, as well as at the time of dissolution. If circumstances have changed drastically, or unforeseeably, during the marriage, a litigant may seek to invalidate the contract as unconscionable. Success and a large increase in wealth, standing alone, may not be sufficient to prove unconscionability. For Instance, in Winchester v. McCue, the court concluded that a roughly 430 percent increase in wealth over the course of a marriage did not render the terms of a marital agreement unconscionable. The “threshold for finding an extraordinary change in economic status is high,” and a litigant must show the change to be so far beyond what the parties may have contemplated to render enforcement of the agreement unjust. Winchester v. McCue, 91 Conn.App. 721 at 730 (2005).

Fair And Reasonable Disclosure

There must be evidence that a litigant received fair and reasonable disclosure of assets prior to entering into a prenuptial agreement. Disclosure is viewed from the perspective of the disclosing party, not from the perspective of the receiving party. However, if the receiving litigant had independent access to  knowledge of the amount, character and value of the assets, income and obligations of the opposing party, an analysis of the degree disclosure may take that access to knowledge into account. The ability of the recipient to process or comprehend the disclosed information generally may not need to be analyzed in testing reasonable disclosure. Friezo v. Friezo.

Opportunity To Consult With Independent Counsel

Similar to the analysis of whether execution of an agreement was voluntary, timing is important in determining whether a litigant had a reasonable opportunity to consult with independent lawyer. In essence, the inquiry is to determine whether the litigant against whom enforcement is sought has sufficient time to seek advice from a lawyer other than the attorney representing the future spouse. Moreover, whether a party actually sough or received independent legal advice is not determinative – the inquiry is about the opportunity and whether the time frame to seek advice was reasonable. Friezo v. Friezo.

Issues Involving Children

Connecticut law does not allow parents to adversely affect the right to child support obligations in a prenuptial or postnuptial agreement. Note that issues involving educational opportunities, including potential expenses and costs related in educational orders may be included in a prenuptial or postnuptial agreement. Issues involving the care of a child, custody or visitation remain subject to judicial review and may be modified by the court.

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