Postnuptial Agreement: An Alternative for Couples on the Path to a COVID Divorce
As a result of Governor Lamont’s stay-at-home executive order, married couples throughout Connecticut have been forced into isolation within the restricted confines of their residences. If the rest of the world is any indication, this forced confinement of spouses may lead to a rise in divorce rates. In China, following the mandatory corona virus quarantine, there has been an unprecedented rise in the divorce rate, with an expected similar effect in countries throughout the world and in the United States.
Even if you believe you fall into this category of married couple, with the forced quarantine leading you and your spouse to the realization that your marriage may be on the road to a divorce, this does not mean that divorce is the only option. An alternative to the finality of divorce is the postnuptial agreement (sometimes also called a postmarital agreement), which allows you and your spouse to continue to work on your marriage (as the stay-at-home orders will eventually lift and a form of normalcy should resume), but is intended to provide a predictable and orderly agreement on financial terms in the event of a divorce a contingency plan should the attempt at saving the marriage fail.
A postnuptial agreement is an agreement entered into by married couples that provides for what will happen financially (alimony and the division of property) should the couple eventually divorce. The postnuptial agreement does not require or mandate an eventual divorce, or even mean that the marriage will not work, but can provide a resolution of the financial issues should a divorce action eventually be commenced. The purpose of a postnuptial agreement is in fact to facilitate resumption of the marriage on agreeable terms. If a couple has minor children, any custody, visitation, or child support issues will need to be resolved at the time of the divorce action, either through a settlement agreement or court involvement; these child related issues cannot be resolved by way of a postnuptial agreement.
Connecticut Courts apply a stricter scrutiny to the enforcement of postnuptial agreements because of the concern that the marital relationship may lead one spouse to take advantage of the other. For this reason, while you and your spouse may outline the terms of any such agreement, you should consult with an attorney to ensure that the postnuptial agreement complies with contract principles and that you fully understand the rights you may be waiving by entering into an agreement to resolve the financial issues of a potential divorce. Postnuptial agreements can be subject to challenge in Connecticut. While the law in Connecticut approves of postnuptial agreements, there are ways in which one party may try to avoid the enforcement of the agreement.
It is important that you consult with experienced counsel on these issues to consider whether a postnuptial agreement may be a good fit for your situation, and if so, to draft it in such a way as to protect your rights and also take appropriate steps to protect its validity and enforceability. If you already have a postnuptial agreement and now wish to bring a divorce action (or your spouse has brought one) you should consult with counsel as to prospects for enforcing or avoiding that postnuptial agreement.
Our firm, Needle | Cuda, has experience on all sides of this issue: drafting postnuptial agreements, enforcing them, and also seeking to challenge them in court.
Since his acceptance to the bar, Mark has practiced exclusively in the area of matrimonial and family law, including complex divorce actions involving significant assets and child custody issues, prenuptial and postnuptial agreements, and he has represented clients in Connecticut and New York trial courts, as well as the Connecticut Appellate Court.