What Can Be Included in a Prenuptial Agreement?

Prenuptial agreements are more flexible than most people realize. They can address a wide range of issues, including property rights and obligations. Connecticut law does provide guidance as to the topics that can be addressed in a prenuptial agreement.

How Does a Prenuptial Agreement Affect Your Rights in Divorce?

Under Connecticut law, all property owned by either spouse at the time of the divorce is considered marital property subject to equitable distribution absent a prenuptial (or postnuptial) agreement that states otherwise. Prenuptial agreements allow couples to decide how they want to divide their property in the event of legal separation, divorce, or death. They can also agree on spousal support and other issues. Generally, courts in Connecticut have trended toward enforcing prenuptial agreements unless the agreement does not meet certain legal standards.

What Provisions Should Be Included in a Prenuptial Agreement?

Prenuptial agreements can be as broad or narrow as the parties want. However, it is advisable to address these issues:

• Property owned by one spouse prior to the marriage. Will the property be considered marital or separate property? 
• Property acquired during marriage. What are the parties’ rights and obligations with respect to such property?
• Transfer/purchase/sale/mortgage of separate property during marriage. Can a spouse unilaterally buy or sell property? If the spouse gets a mortgage or incurs debts related to the property, who is responsible for those debts? How will any increases in value during the marriage be treated?
• Disposition of property in divorce or death. Will one spouse buy out the other one and retain the property, or will it be sold, and the proceeds divided?
• Death. What will the surviving spouse get? Is each spouse waiving the right to their “elective share” of the other’s estate? (Note that a prenuptial agreement is not a substitute for estate planning.)
• Alimony. How much, if any, will a spouse receive? Will alimony be addressed in the Prenuptial Agreement, or be left open to decide at the time of a divorce. 
• Life insurance. Will a spouse be required to obtain life insurance during marriage?
• Retirement benefits. What rights does each spouse have to the other spouse’s retirement benefits?
• Choice of law. What state’s law will govern the interpretation of the agreement?

Depending on the circumstances, other issues may also be discussed.

What Provisions Should Not or Cannot Be Included in a Prenuptial Agreement?

Under Connecticut law, a prenuptial agreement can address child custody or child support. However, the court has the right to review such provisions and determine whether they are in the best interests of the children at the time of the divorce. As a result, these matters are typically not included in the prenuptial agreement. It is difficult, if not impossible, to predetermine these issues and spending the time to negotiate provisions that may be null and void in the event of a divorce is not economical. 

The state does prohibit any terms that would violate Connecticut public policy. Typically, this would include spousal support provisions that would leave the spouse destitute and on public support. 

An infidelity clause that penalizes a cheating spouse may also be against public policy, depending on the circumstances.

Do You Need a Prenuptial Agreement?

If you are considering a prenuptial agreement, it is critical to consult an attorney to have it carefully negotiated and drafted to avoid problems later. Our attorneys have extensive experience negotiating and drafting legally enforceable prenuptial agreements at every level of complexity and sophistication. Contact us to discuss how we can help you.