Postnuptial agreements can be a powerful tool for married couples to enforce decisions about their property, finances, and other aspects of their life together. They can be equally valuable for couples anticipating divorce or planning to remain married.
However, like any legal tool, there are restrictions on how it can be used. Speak with one of our seasoned postnuptial attorneys about the limitations of postnuptial agreements in Southbury before you decide whether they are the right solution for your situation.
No Custody Decisions
Many couples use postnuptial agreements as a template for a separation agreement. In the postnup, they decide whether to segregate separate property and establish a fair division of their marital property.
The major limitation of using postnuptial agreements in this way is that the couple cannot decide on child custody or child support in a postnuptial agreement. According to Connecticut General Statutes § 46b-56, custody and child support decisions must be made at the time of separation. The children’s best interests at that time must be the driving force behind custody decisions.
Couples can make preliminary decisions about custody and include them in a postnuptial agreement, but those provisions will not be enforceable. The parents must review their decisions when they decide to formally separate or divorce and incorporate those updated decisions into a parental responsibility plan. A Southbury attorney can help a couple understand the limitations of a postnup agreement and how judges make custody decisions to help them create a parental responsibility plan.
Couples can include provisions regarding spousal support in their postnuptial agreement. They can decide on an amount of spousal support, decide that the amount will be determined at the time of separation, or they can waive it entirely.
When a couple chooses to determine the amount of spousal support in a postnuptial agreement, they must do so with the understanding that it is subject to change. A court will review each spouse’s financial situation at the time of separation and decide whether the spousal support amount is fair under the circumstances. A Connecticut judge could set the provision aside if the spousal support amount would cause financial hardship to either spouse or create a significant disparity in their post-divorce lifestyles.
When a couple’s financial circumstances have changed substantially since they signed a postnuptial agreement, they should review the alimony provision with a Southbury lawyer. Renegotiating the alimony amount before filing for divorce is more efficient than going forward with the possibility that a court might set the provision aside.
Connecticut courts will not honor a postnuptial agreement that was unconscionable when it was made or when the parties seek to implement it. An agreement is unconscionable when it is shockingly one-sided or unfair to one party.
Both parties should seek independent legal counsel to review the agreement before signing. A comprehensive legal review with a dedicated family attorney can identify an unconscionable agreement before the parties sign.
However, sometimes circumstances change so much that an agreement that was fair when it was signed is unconscionable when the parties separate. If one spouse tries to enforce the agreement, and the court finds it unconscionable, the court can invalidate the entire agreement, set aside the unfair provisions, or modify them.
Postnuptial agreements can simplify, reduce costs, and improve the efficiency of divorce proceedings. They can also help couples who plan to stay together manage specific aspects of their lives.
However, couples considering this legal tool should be aware of the limitations of postnuptial agreements in Southbury. Reach out today to consult with one of our marital agreement attorneys about whether a postnuptial agreement will accomplish your goals.
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