Everything You Ever Wanted To Know About Prenups But Were Afraid To Ask: An In Depth Look

When it comes to answering your legal questions on the internet, my readers know by now that I hate “fluff.” So I’ll provide a brief synopsis first, but I urge you to read this entire post because things get pretty nuanced in law and it’s important to fully understand the risks and benefits associated with – whatever you do.

The Bottom Line: The terms “Prenups” or “Prenuptial” or “Antenuptial” agreements are all contractual agreements signed between two prospective spouses (fiances) in contemplation of marriage. They are generally allowed and upheld in Connecticut. They need to be signed voluntarily by both fiances and both parties must fully disclose their finances and have reasonable opportunities to contact their own lawyers. For this reason, it is generally best practice for both parties to hire lawyers before signing a prenup. Connecticut prenup law is governed by Sec. 46b-36a. Read through the statute, it’s written in pretty clear and common language and it is very informative.

Enforceability: The thing that’s tested most with prenups is “unconscionability.” It goes without saying that prenups that have been entered into involuntarily, or under duress (i.e. someone held a gun to your head), or bewteen minors, etc.. are not enforceable. But most of the time people are of age and entering into prenups voluntarily. So the only thing left to test is the “unconscionability” of the document.

In laymans terms that basically means if a judge feels the document is so unfair, or if situations and circumstances have changed so much that it would be “unjust” to enforce the agreement… then some parts of the prenup or the whole prenup itself may not be enforced.

As someone challenging a prenup, you may subjectively feel that it is unfair to enforce. But remember that it’s up to a judge and the standard is “unconscionable.” Examples of prenups that have been invalidated are ones where like, the dad starts a small business when both parties are poor and then the business explodes in revenue and becomes the next Facebook – all while mom was at home taking care of the children and house. Those changes of circumstances are so unanticipated and dramatic that a judge likely would agree that enforcing a prenup that denies mom a share of the business that she helped create (by allowing the father to work as she raised a family). would result in an unjust outcome.

So with prenups, it’s important to make sure everything is outlined, understood, events are anticipated, and the closer the provisions stay within the bounds of reasonability the less likely the other spouse will be able to cussessfully challenge it.

⬇️⬇️For a more nuanced look a prenups keep reading ⬇️⬇️

Prenups: A Deeper Look

What is a prenup?

A prenup is a contract between two prospective spouses (fiances.)

Therefore, it must be drafted in accordance with the laws of contract and within the bounds of Connecticut’s specific “Prenup” statute.

Even though the validity of a prenup is evaluated based on the precepts of contract law, it’s enforced in family court before a judge.

Normally when you have a contractual dispute you have a civil cause of action in superior court where you may be entitled to a jury.

But not for prenups.

What can a prenup do?

Don’t take my word for it, read the Sec. 46b-36d of the Connecticut statute. I reposted the exact language below:

“(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.”

What’s it all mean?

From the plain language of the statute you can see that you’re allowed to cover things like.. spousal support, property rights, disposition of assets at the dissolution of marriage, ownership rights of life insurance policies, and a catch-all “any other matter… including personal rights and obligations…”

So, basically a prenup can say anything, except, of course, it can’t have any criminal provisions (e.g. “if wife divorces me we split the family stash of heroin 50/50”.)

Also, it gets dicey when you start putting things that affect your child. For example, visitation, custody, and child support issues… In many states those provisions aren’t even allowed. Connecticut’s statute doesn’t outright invalidate any of those proivisions, but it essentially says that those provisions will be subject to judicial review and modification… Meaning, that a judge can modify them if the judge feels they are unfair.

For that reason, most prenups don’t cover anything having to do with children.

Note: I said before that a prenup can basically cover anything. While this is true… it doesn’t mean that a prenup will protect anything.

You can add risky provisions about child care and other inherently unfair and unconscionable arrangements in a prenup if you want to… and nothing is going to happen with it until years from now when you get divorced and test it in front of a judge. So… yes prenups can cover “anything.” But just because they can doesn’t mean a judge won’t strike it down years from now.

Connecticut courts have reiterated though, that the test of “unconscionability” is high. In recent decades, prenups have increasingly enforced.

Traditionally, prenups were viewed as unfair mechanisms for scheming spouses to circumvent their remaining responsibilities at the conclusion of marriage. For this reason, they were commonly disfavored in courts.

Now, the tides have turned on prenups. A lot of people who don’t even really need them get them – probably because they’ve heard them mentioned on the Kardashians.

The bottom line when challenging a prenup:

They are generally upheld unless “unconscionable.” I caution my clients that prenups are not “airtight” documents, like, for example, a will.

A will is super duper hard to challenge if it conforms with the basic requirements of law. Nothing is ever truly “airtight” in law, but a will comes pretty damn close.

A will can be unfair, it can be unconscionable, you can disinherit your kids, your parents, your spouse (kind of, not really)…

A prenup cannot be as unconscionable.

So with that in mind, your prenup is probably safe.

Just keep in mind that the farther your circumstances at the time of divorce have deviated from the start of your marriage, the more compelling a challenge against a prenup is going to be.

Some case law

The big case in CT is Beyor v. Beyor 2015

Quickly: How does case law work?

We have this statute about prenups in Connecticut, which I’ve mentioned before:Sec. 46b-36d.

But whos to say what this statute really means? We’ve spoken about “unconscionability” but that’s such a subjective term, like how do we figure out what it REALLY means?

That’s what cases do. In cases, judges will expound upon definitions in the statute. And that’s what Beyor v. Beyor is about.

The wife challenged their prenup in 2011 and they ruled on the case and she lost. So she appealed and in 2015 the appeal is heard.

The husband was worth about $650k and had salary of $250k, and wife was making $30k/year when they signed the prenup.

In 2011 when the husband sought enforcement, he was worth about $4.5mil and still had a really high salary.

The wife wanted to invalidate the prenup, claiming that it was “unconscionable,” because he was worth so much more money now than he was when they signed the prenup.

Even though she was right about them having dramatically different net worths, the court still upheld the prenup.

The court said:

“The question of unconscionability of contract is a matter of law to be decided by the court based on all the facts and circumstances of the case.”

“there certainly are some arguments to be made that the husband is lacking in chivalry and respect for the woman that he claimed to love in 2006 when he seeks to remove her from his life with no economic support considering the five years they spent together, there is, given the prenuptial agreement, no requirement that he do so…

The defendant, although five years older, is not unemployable, medically disabled, nor lacking in skills that would permit her to be self-sufficient. She will not become destitute and a ward of the state if the prenuptial agreement is enforced against her, although the financial quality of her life will undoubtedly diminish.”

The court delicately agreed the husband was a scumbag for leaving his wife high and dry.

But legally, they didn’t feel that the change in circumstances met the burden of “unconscionability.”

The court further stated that:

“The classic definition of an unconscionable contract is one which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other….

…The doctrine of unconscionability, as a defense to contract enforcement, generally requires a showing … of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party…. The purpose of the doctrine of unconscionability is to prevent oppression and unfair surprise…

…Unfairness or inequality alone does not render a postnuptial agreement unconscionable; spouses may agree on an unequal distribution of assets at dissolution.“

Welp, there you have it. As you’ve seen, prenups aren’t entirely airtight, but they’re pretty strong legal documents.

Just make sure you got a lawyer.

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