An Introduction to Postnuptial Agreements

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

Postnuptial agreements are agreements made by individuals who are already married. Like pre-marital agreements, postnuptial agreements address the division of property and alimony in the event of a divorce. There are multiple reasons couples enter into postnuptial agreements. For example, if one spouse has misbehaved during the marriage, the misbehaving spouse may make financial promises to the innocent 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 of post-nuptial agreements in Bedrick v. Bedrick, 300 Conn. 691 (2011). In determining whether postnuptial agreements are enforceable at the time of a divorce, the court held that those agreements must be subject to special scrutiny. The rationale is that while parties have greater negotiating power prior to marriage, parties who are already married may use the threat of divorce to gain a better advantage in the negotiating of a post-nuptial agreement.

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

A carefully constructed postnuptial agreement can help save a marriage. If it doesn’t, it can make the financial outcome of a divorce less uncertain. If you think a postnuptial agreement may be right for you and your spouse, contact the lawyers of Ferro & Battey, LLC for more information.