By George A. Reilly

Daniel and Kaitlyn were excited about their upcoming wedding. At the same time, Kaitlyn believed she needed to protect assets she had accumulated. She could not imagine that her marriage to Daniel would end badly, but she has seen it happen to others.

Kaitlyn has received significant gifts from her grandmother, and knows she may become a beneficiary of a trust. She also thinks she may receive a significant inheritance from her parents someday. Kaitlyn’s parents love Daniel, but they want any inheritance protected for Kaitlyn and, hopefully, grandchildren.

Finally, with three months to go before the wedding, Kaitlyn broached the subject of a prenuptial agreement with Daniel. The conversation went well, as Daniel had some concerns of his own.

They need to consider carefully the merits of a Connecticut prenuptial agreement and how their assets and income would be shared in the event of termination of their marriage by divorce or legal separation. It may also address their rights upon the death of a party as well.

Judges have discretion

In Connecticut, any property owned by Kaitlyn and Daniel can be divided between them in the event of a divorce regardless of whether the property was given to, invested in, earned or inherited by one spouse, and regardless of how they hold title.

That is not to say that a Connecticut court will always divide property in the name of one party between the spouses, but it can. In fact, Connecticut law mandates that the court consider the source of the property, but there is no assurance about how a judge would distribute such property.

Assurances can be achieved through a properly prepared prenuptial agreement. The parties need an attorney for each of them and they need to disclose all of their present and anticipated financial circumstances. A Connecticut court will enforce the prenuptial agreement unless a court finds it to be “unconscionable”. Finding an agreement unconscionable in Connecticut is rare.

Typical issues

Kaitlyn and Daniel have a number of typical issues to consider. They must consider how to distribute property they own at the time of their marriage and any appreciation of that property. They can address how to provide financial support from their respective incomes during and after the marriage. It is even possible to consider the cause of the breakdown of the marriage in determining the distribution of property. For example, the parties can agree that if one party engages in an extramarital affair, that party will transfer 20% more of his or her property than otherwise provided in their agreement.

Kaitlyn also wants to think about Daniel’s claims against her estate upon her death. Connecticut law assures each spouse of a certain minimum from the estate of the deceased spouse. In a prenuptial agreement, the parties may give up even that minimum so their Wills will determine the surviving spouse’s share. In this way, each spouse can carve out property they own individually from such distribution. Kaitlyn wants to take advantage of this opportunity, even though now, before any children, she plans to leave all her property to Daniel.

Resolved and relieved

Daniel and Kaitlyn made a simple agreement to keep for himself and herself the property each owned at the time of their marriage. They agreed that if they acquire property jointly, their interest in that property will be determined by the amount of each party’s investment in it. They also agreed to leave unresolved any obligation for support from income (alimony) to be determined if their marriage ends by divorce based on their circumstances at such time.

Having made their agreement, Daniel, Kaitlyn and their parents enjoyed the wedding with peace of mind.

George A. Reilly has practiced family law and related areas of law for over 36 years in and around Darien and New Canaan.

For more information, please contact George Reilly at 203-202-9686.