Legislative History
SUMMARY: This act explicitly authorizes prospective spouses to make an agreement before marriage that covers property distribution and certain other issues. It requires that premarital agreements be in writing and signed by both parties and makes them enforceable even if parties receive nothing of value in return for agreeing. A premarital agreement becomes effective, under the act, when the parties marry or at some other time it specifies. After marriage, it may be amended or revoked only by a written agreement signed by both people. If a marriage is held to be void or voidable, a premarital agreement is enforceable only as necessary to avoid an unfair result.
The act specifies circumstances under which such agreements are not enforceable. Under the act, a child's right to support may not be harmed by a prenuptial agreement and any provision concerning the care, custody, visitation, or other child-related provisions may be reviewed and modified by a court.
The act authorizes a court to order the payment of spousal support, even if the agreement eliminates it, if one of the parties is eligible for public assistance at the time of separation or divorce. It also authorizes a court to decide whether a premarital agreement is unconscionable.
The act applies to premarital agreements entered into after September 30, 1995. Its provisions do not affect the validity of any premarital agreements made before October 1, 1995.
Testimony Before Joint Committee On The Judiciary
Written Testimony Before Joint Committee On The Judiciary
How to Cite a Connecticut Legislative History
Public Act 95-170
Conn. Gen. Stats. §§46b-36b to 36j
The Connecticut Premarital Agreement Act began as Substitute House Bill 6932, a raised committee bill of the Joint Committee on the Judiciary.
Public Hearing. On March 10, 1995 a public hearing was held before the Joint Committee on the Judiciary at which Edith McClure of the Connecticut Bar Association spoke in support of the bill, offering both oral and written testimony to the Committee (p. 4).
Committee Report. The bill was subsequently given a joint favorable report by the Joint Committee (p. 6).
Floor Debate. An amendment was offered (p.8) and following debate (p. 9) on the floor of the House of Representatives, Substitute House Bill 6932 with this amendment was passed on April 23, 1995.
Senate Action. Substitute House Bill 6932 was placed on the consent calendar and passed without debate on April 30.
Public Act. The bill was designated Public Act 95-170 and codified in the Connecticut General Statutes, revised to January 1, 1997 as:
95-170 Section 2............................................................ §46b-36c
Section 3............................................................ §46b-36d
Section 4............................................................ §46b-36e
Section 5............................................................ §46b-36f
Section 6............................................................ §46b-36g
Section 7............................................................ §46b-36h
Section 8............................................................ §46b-36I
Section 9............................................................ §46b-36a
Section 10.......................................................... §46b-36j
and was effective October 1, 1995.
Lawrence Cheeseman
Supervising Law Librarian
Connecticut Judicial Branch
Law Library at Middletown
One Court Street
Middletown, CT 06457
(860) 343-6560
Substitute House Bill 6932
Title: AN ACT CONCERNING THE CONNECTICUT PREMARITAL AGREEMENT ACT.
Statement of Purpose: To adopt a premarital agreement act.
Bill History:
03-09 REF. TO JOINT COMM. ON JUDICIARY
03-10 PUBLIC HEARING 03/17 (PH0317)
04-19 JUD - JOINT COMMITTEE FAVORABLE
04-20 FILED WITH LEG. COMMISSIONER
05-01 REFERRED TO OLR, OFA
05-08 RPTD. OUT OF LCO
05-08 FAV. RPT., TAB. FOR CAL. HO.
05-08 FILE NO. 567
05-23 HO. ADOPTED HO. AMEND. SCH. A:LCO-6719
05-23 HO. PASSED, HO. AMEND. SCH. A
05-24 FAV. RPT., TAB. FOR CAL., SEN.
05-25 FILE NO. 813
05-30 SEN. ADOPTED HO. AMEND. SCHED. A
05-30 SEN. PASSED, HO. AMEND. SCH. A
06-15 TRANS. SEC. OF STATE PA 170
06-27 SIGNED BY GOVERNOR
Co-sponsors: REP. SCIPIO, 93rd DIST.
CITE AS: Conn. Joint Standing Committee Hearings, Judiciary, Pt. 7, 1995 Sess., p. ___.
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EDITH McCLURE: Thank you, Senator Upson, members of the committee. My name is Edith McClure.
SEN. UPSON: I am sorry. Edith.
EDITH McCLURE: And I represent the Connecticut Bar Association Family Law Section. I was on the committee which drafted the Connecticut Premarital Agreements Act and I am here today to speak comment, on behalf of that act.
SEN. UPSON: This takes the place of pre-nuptial agreements?
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EDITH McCLURE: This is the Pre-Nuptial Agreement Act. It is HB6932. In studying the whole area of premarital agreements, we stared with the premise that people who were entering into a marriage should have the right to contract about their future and about their finances and expect to have that contract enforced and we turn from that to look at the existing law and saw an overlay of case law, common law, which created some confusion. Courts have found, for instance, that pre-marital agreements are against public policy because there is a waiver of spousal support.
Things have changed since that common law was created and we also have a decision here in Connecticut, McCue vs. McCue which addresses some of those issues, but doesn't address all of the issues.
So the drafters of this act looked at the Uniform Act, but tailored that act specifically for Connecticut. And in doing so, what we looked at in particular were, for instance, the ability for a person to request, basically, a second look if a pre-marital agreement is basically unfair when enforcement is sought, they can seek to avoid the pre-marital agreement.
Basically, we have looked at the voluntariness of the signing. We at looked at and provided for, as I say, a second look and we look at what went into the signing. Was this a last minute proposition before the march down the aisle? Did people have an opportunity to get full disclosure of financial information? And did they have an opportunity to consult with an attorney? Or did they voluntarily waive those rights because people have a right not to consult.
We have also added some definitions to the term "property". All in all, we have tried to come up with an act which is comprehensive and which deals with the issues that are left unclear in Connecticut law.
SEN. UPSON: This would not have anything to do with palimony, correct?
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EDITH McCLURE: That's correct.
SEN. UPSON: And there would have to be a legal marriage?
EDITH McCLURE: That's correct. A pre-marital agreement would be voided if the marriage did not occur.
SEN. UPSON: And do we have a Pre-Marital Agreement Act on the books right now?
EDITH McCLURE: We do not.
SEN. UPSON: We do not. Do many states have them?
EDITH McCLURE: Yes. A number of states do have them. At last count, it was thirteen that had adopted the Uniform Act. We are not suggesting just adopting the Uniform Act. We think it needs to be a little bit more closely tailored to our situation here in Connecticut.
SEN. UPSON: And what's the --
EDITH McCLURE: I am sorry?
SEN. UPSON: What is the need for this?
EDITH McCLURE: The need for this --
SEN. UPSON: I have the answer, but I want to hear from you.
EDITH McCLURE: Okay. The need, basically, is for certainty.
SEN. UPSON: Well also, we have many more people who are getting remarried who have been married before.
EDITH McCLURE: I was going to say, a lot of people who are requesting pre-marital agreements have been through the divorce process and would just as soon avoid that again completely, but also have the right to contract concerning the possibility of divorce.
SEN. UPSON: Sounds like a good idea. Yes,
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Representative Jarjura.
REP. JARJURA: Thank you, Senator.
SEN. UPSON: Are you contemplating marriage?
REP. JARJURA: Not presently unless you know something I don't know. I know you are contemplating marriage, Senator. For the second time.
SEN. UPSON: Can we have that off the record, please?
REP. JARJURA: Off the record. You indicated that you would not –
SEN. UPSON: You made me blush.
REP. JARJURA: Sorry about that. You indicated that you would not want to adopt the uniform pre-marital agreement provisions because of something unique in Connecticut. What would be the difference of ours and the uniform in our unique situation?
EDITH McCLURE: The Uniform Act (GAP IN TESTIMONY DUE TO GOING FROM TAPE 2A TO 2B) has the requirement that the agreement be fair when it is executed. In other words, back at the time before the marriage occurs. But has no provision to look at that again at the time the enforcement is sought. And as we all know, things happen. Particularly in a long term marriage.
And so there is a provision in our draft that provides for a second look and a look at whether the agreement is unconscionable at the time that enforcement is sought. Of course, unconscionable goes beyond just fairness. It is that "gut" reaction of something just being wrong.
So that's one of the things. We have also defined property to include retirement, include -- and that is a real key upon remarriage for a lot of people because they have retirement plans that pre-date this second marriage.
Also we define property to include, intent of property, to also include debts. Unfortunately, in
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the 90's that is a big problem. Does that answer your question?
REP. JARJURA: Yes. Thank you.
SEN. UPSON: Any other questions? Thank you very much. I appreciate it. Both of you.
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Testimony of Edith F. McClure
CBA Family Law Section
House Bill No.6932
An Act Concerning Premarital Agreements
March 17, 1995 — Judiciary committee
Purpose. The purpose of the proposed Act is to achieve by legislation a statement of public policy recognizing the efficacy of agreements for the management and control of property and personal rights and obligations of spouses. It is intended that this Act serve as a guideline and standard for planning f or people who are entering into a marriage, similar in nature to Wills and Trust Agreements. The purpose of the Act is to provide certainty as to the enforceability of the provisions in premarital agreement. for a mobile population in conformity with uniform legislation enacted in other states. The Act is further intended to clarify the level of financial disclosure between parties and to over come limitations in the scope of the major Connecticut Court decision on Premarital Agreements, McHugh vs. McHugh, 181 181 Conn. 452 (l980). The Connecticut Premarital Agreement Act (CPAA) addresses the relationship of the parties as respective spouses and is intended to impose a duty of good faith and fair dealing in all matters. The provision for amendment and revocation is madein recognition of the possibility that later events may make it unwise, unfairor otherwise undesirable to enforce an agreement.
Background. Recent statistics of the current rats of divorce is approximately one-half of the rate of current marriages. There is a need for a articulated public policy which recognizes the contractual aspect of marriage and which encourages communication between prospective spousal regarding their expectations for financial management, their rights and obligations and the ordering of affairs.
The McHugh decision which is the leading decision of our Supreme Court regarding premarital agreement islimited to the issue presented in that case. The Court was asked to address the issue of a jointly owned residence acquired after the marriage, and paid for with earning of thehusband. Thecase presented no opportunity for the Court to ruleon the validity of a premarital agreement dealing with alimony, spousal rights, or the care of children. The Appellate decision does not specifically address (a) assets(and later the appreciation in value of the same), and
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liabilities brought into the marriage; (b) property acquired during the marriage by gift or inheritance (or appreciation in these assets); (c) the non monetary value in effect of contribution to property by one spouse; or (d) spousal support provisions. Furthermore McHugh speaks of a test of conscionability (fairness) at the time of enforcement but leaves uncertain whether this test also applies to spousal support provisions, as well as property provisions.
Drafting History. The Family Law Section Marital Properties Study committee undertook an extensivestudy of marital property and premarital property legislation and court decisions. In 1988 the committee focused on the need for clarification and standards for premarital agreements. TheUniform Premarital Act was made a basis for drafting. Theproposed CPAA represents a consideration of the Connecticut experience by the drafters.
Analysis. The drafting committee, in addition to reviewing the Uniform Premarital Agreements Act and legislative and judicial decisions in other stateslooked to an article in the Rutgers Law Review, “Perspectives on Anti-Nuptial Agreements” by Younger, Rutgers Law Review, 1059, Summer 1988, which they found particularly helpful in framing recommendations for changes in the Uniform Act.
Theparticular changes areas follows:
Section 1 (2) confirms that property includes both tangible and intangible personal property and includes debts aswell as income.
Section 6 includes a provision for an individual to contest thefairness (conscionability) of the agreement at thetime that enforcement is sought. The Uniform Premarital Act allows an individual to contest the fairness asof the date of execution but does not allow a “second look”.
Section 6 (a) (3) allows for an individual to contest an agreementif that individual is not provided with fair and reasonablefinancial disclosure and did not waive that right or have independentknowledge. In addition, as a further safeguard, the CPAAdrafters haveprovided for non enforcement when a person isnot afforded a reasonable opportunity for counsel unless that party voluntarily and expressly waived that right in writing.
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It should be noted that thedraft of the Act which Irecently reviewed has two typographical errors both in Section8. Section 8 should read:
Section s any statute of limitations applicable to an action assertinga claim for relief under a premarital agreement istolled during the marriage of the partiesto theagreement, except that is equitable defenses limiting thetime for enforcement, including laches and estoppel, shall be available to either party
REPORT ON BILLS FAVORABLY REPORTED BY COMMITTEE
COMMITTEE: Judiciary
File No.:
Bill No.: HB-6932
PH Date: 03/17/95
Action/Date: JF
4/19/95
Change of Reference:
TITLE OF BILL: AN ACT CONCERNING THE CONNECTICUT PREMARITAL AGREEMENT ACT.
SPONSORS OF BILL: Judiciary Committee
REASONS FOR BILL:
The bill establishes guidelines and standards for people who are planning a premarital agreement. By enacting the legislation, it provides a certainty as to the enforceability of the provisions of a premarital agreement. Similar laws have been enacted in numerous other states.
RESPONSE FROM ADMINISTRATION/AGENCY: None.
NATURE AND SOURCES OF SUPPORT:
Connecticut Bar Association supports the bill and provided the language to the Committee. CBA believes that the bill is not only necessary but overdue in light of similar laws in other states. CBA also believes that the bill imposes a duty of good faith and fair dealings in all parties.
NATURE AND SOURCES OF OPPOSITION: None.
House Amendment Schedule "A" (LCO 6719)
CITE AS: Journal of the House of Representatives of the State of Connecticut, January Session, A.D. 1995
page 1244
JUDICIARY. Substitute for H.B. No. 6932 (RAISED) (File No.
567) AN ACT CONCERNING THE CONNECTICUT PREMARITAL AGREEMENT ACT.
The bill was explained by Rep. Scalettar of the 114th who offered House Amendment Schedule "A" (LCO 6719) and moved its adoption.
On a voice vote the amendment was adopted.
The Speaker ruled the amendment was technical.
The following is House Amendment Schedule "A" (LCO 6719):
In line 65, after "party" strike the colon
In line 66, strike "(A) Was" and insert "was" in lieu thereof
In line 69, after the semicolon, strike "and" insert "or" in lieu thereof
Strike lines 70 to 78, inclusive, in their entirety.
In line 79, after "was" strike "neither" and insert "not" in lieu thereof
In line 81, after "counsel", insert a period and strike ", nor voluntarily and expressly waived, in"
Strike line 82 in its entirety.
The bill was discussed by Reps. Belden of the 113th and Radcliffe of the 123rd.
The Speaker ordered the vote be taken by roll call at 1:38 p.m.
The following is the result of the vote:
Total Number Voting................................................................................ 147
Necessary for Passage............................................................................... 74
Those voting Yea.................................................................................... 147
Those voting Nay........................................................................................ 0
Those absent and not voting.................................................................... 4
On a roll call vote House Bill No. 6932 as amended by House Amendment Schedule "A" was passed.
Tuesday, May 23, 1995
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CLERK: On Page 11, Calendar 379, Substitute for HB 6932, AN ACT CONCERNING THE CONNECTICUT PREMARITAL AGREEMENT ACT. Favorable report of the Committee on Judiciary.
DEPUTY SPEAKER HYSLOP: Representative Scalettar.
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REP. SCALETTAR: (114th): Thank you, Mr. Speaker. I move acceptance of the Joint Committee's favorable report and passage of the bill.
DEPUTY SPEAKER HYSLOP: The question is on acceptance and passage. The question is on acceptance and passage. Will you remark further?
REP. SCALETTAR: (114th): Thank you, Mr. Speaker. This bill establishes standards and guidelines for premarital agreements. It includes what the agreements may have in them, what they can include, and also under what conditions the agreements will be unenforceable.
The bill specifically provides that a premarital agreement may not have any provisions which adversely affect a child of the marriage and has other details with respect to premarital agreements.
Mr. Speaker, the Clerk has LCO 6719. Will he call and I permitted to summarize?
DEPUTY SPEAKER HYSLOP: Will the Clerk please call LCO 6719, designated House Amendment "A"?
CLERK: LCO 6719, offered by Representatives Scalettar and
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Fritz.
DEPUTY SPEAKER HYSLOP: Representative Scalettar.
REP. SCALETTAR: (114th): Thank you, Mr. Speaker. This Amendment deletes certain of the items which would have invalidated an agreement. One is deleted because it is duplicative of another section of the statute and the others because they would encourage routine waiver of rights and not be a meaningful provision with respect to invalidating the agreements. I move adoption of the Amendment, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: The question is on adoption. Will you remark further? The question is on adoption. Will you remark further? If not, we'll try your minds. All those in favor signify by saying Aye.
VOICES: Aye.
DEPUTY SPEAKER HYSLOP: Those opposed Nay? The Ayes have it. Amendment "A" passes, ruled technical.
Will you remark further on the bill as amended?
Representative Belden.
REP. BELDEN (113th):
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Mr. Speaker, just a question, through you to the proponent please. Mr. Speaker, with the enactment of this legislation, if somebody had signed some other agreement or it didn't comply with this statute, would it have the legal effect of a contract anyway? Through you, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: Representative Scalettar.
REP. SCALETTAR (114th): Through you, Mr. Speaker. Yes, it would still be a valid contract. In fact, the bill specifically provides in Section 10 that it will not be deemed to affect the validity of any premarital agreement made prior to the effective date of the Act.
DEPUTY SPEAKER HYSLOP: Representative Belden.
REP. BELDEN (113th): Then, through you, Mr. Speaker, how about a separate agreement made after the effective date that did not entirely comply with the legislation before us?
DEPUTY SPEAKER HYSLOP: Representative Scalettar.
REP. SCALETTAR (114th) : Through you, Mr. Speaker. I think the non-compliance would be subject to interpretation by the
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courts in that circumstance. The language is very broadly written. And I can't really foresee a circumstance where this bill, if enacted, would prevent enforcement of an agreement.
DEPUTY SPEAKER HYSLOP: Representative Belden.
REP. BELDEN (113th): Thank you, Mr. Speaker. What I'm attempting to get into the record here is whether this is a mandate that the only way you can have a premarital agreement in the state of Connecticut is by following this statute or whether or not two consenting adults following a standard contract type format could, in fact, enter into any type of agreement they care to and still be valid. And that's what I'm trying to get in the record, Mr. Speaker, through you to Representative Scalettar.
If I perchance decided to, if for some reason, was single and decided to marry next year and entered into a contract that was different than the requirements of this file, would it be enforceable? Through you, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: Representative Scalettar.
REP. SCALETTAR (114th):
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Through you, Mr. Speaker. It's very difficult to answer in the abstract. I believe that most agreements would be enforceable because I can't, as I said, I can't really foresee circumstances where the conditions would be in such non-compliance as to render the agreement invalid.
But, for example, if the agreement adversely affected the rights of a child, which is in violation of the statute, I do not believe that would be enforceable. It would depend on the actual terms of the agreement.
DEPUTY SPEAKER HYSLOP: Representative Belden.
REP. BELDEN (113th): Thank you, Mr. Speaker. Then another inquiry, if I might. Would we then consider this particular legislation to be model legislation and a recommendation for what we would hope our constituents would follow if entering into matrimony in the state of Connecticut? Through you, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: Representative Scalettar.
REP. SCALETTAR (114th): Through you, Mr. Speaker. I don't believe there's anything in here which takes a position or makes any
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public policy statement as to whether or not people should enter into premarital agreements. It does include, for example, items as to which the parties may contract. That's in Section 3. It is not limiting, however. They could contract with respect to other things.
It also has the elements that would render an agreement unenforceable. And that might be more limiting than the actual terms of the agreement.
DEPUTY SPEAKER HYSLOP: Representative Belden.
REP. BELDEN (113th): Thank you, Mr. Speaker. I think probably as best as the Representative can she's responded to my questions. And I really just wanted to get this on the record because I'm very concerned that two people can legally contract generally, regardless of what specifics are in the law, as long as they, as you indicated, don't abridge the rights of others, such as children, et cetera, because I don't think that we have the right to say this is the only way you could do something with regard to marital status.
And I believe that the various dialogue here would indicate that there is a significant amount of flexibility that can, in fact, be involved in a marital
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agreement. And my personal opinion would be that for the most part the statute before us is essentially a model type of piece of legislation that, as in the case we might have model legislation regarding zoning, and then allow the municipalities to do essentially their own thing. But in order to try to steer the process into a standardized form, we have legislation on the books. At least that's my interpretation. Perhaps the lady has a different one. But I just wanted to get that into the record.
Thank you, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: Will you remark further?
Representative Radcliffe.
REP. RADCLIFFE (123rd): Thank you, Mr. Speaker. A couple of questions, if I may, to follow up on what Representative Belden was saying, particularly as to Section 3, through you to the proponent of the bill.
Section 3 states that "Parties may contract with respect to" and then it cites a series of things, nine specific items. I don't see any language in Section B that indicates that items not covered by Section 3 would be subject to inclusion in a premarital agreement.
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Through you, Mr. Speaker. If a particular clause did not fall within any of the categories in Number 3, would the parties be precluded from contracting freely and openly with regard to that subject matter? Through you, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: Representative Scalettar.
REP. SCALETTAR (114th): Through you, Mr. Speaker. They would not. By its terms, the bill does not preclude contracting as to other matters. And, in addition, Subsection 9 specifically states that they may contract as to any other matter, including their personal rights and obligations.
DEPUTY SPEAKER HYSLOP: Representative Radcliffe.
REP. RADCLIFFE (123rd): Thank you, Mr. Speaker. In Section 5 it provides that an agreement can be modified without consideration, can be modified in writing after the marriage. So, in essence, it's like a will. It's an executory contract, I guess, that can be modified at any time by the parties without consideration.
Through you, Mr. Speaker. Is a premarital agreement during the course of the marriage similar to
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a will in that it can be mutually modified in this way? Through you, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: Representative Scalettar.
REP. SCALETTAR (114th): Through you, Mr. Speaker. I don't know the rules pertaining to modification of a will right off the top of my head. But certainly the language is clear that the premarital agreement can be amended during the course of the agreement by written agreement of the parties and without consideration. Through you, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: Representative Radcliffe.
REP. RADCLIFFE (123rd): Thank you, Mr. Speaker. As I understand a will, a will could be modified or a codicil could be adopted, an addition to the will could be adopted at any time provided it was executed with the same formalities. I don't think those formalities of witnessing and under oath necessarily have to be observed with regard to a premarital agreement.
I'm only concerned with Section 5 saying that it can be modified by an agreement signed by both parties. So if you had an agreement and both parties determined
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that there was a particular clause of that agreement that should be changed due to a change of circumstances or a chance in the desires of the parties, then that could be modified at that point without consideration and would be equally enforceable. Is that the intent of Section 5? Through you, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: Representative Scalettar.
REP. SCALETTAR (114th): Through you, Mr. Speaker. That's correct.
REP. RADCLIFFE (123rd) All right. Thank you. And, finally, Mr. Speaker, a question with regard to unconscionability. On Line 92 we talk about unconscionability being a premarital agreement to be a matter of law to be decided by the court. Are there any standards contained in this bill which are not contained in the standards that we currently use for unconscionability? I mean would a court have to look to this bill or would the court look to existing law on unconscionability? Through you, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: Representative Scalettar.
REP. SCALETTAR(114th): Through you, Mr. Speaker. This would incorporate
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existing law. It does not set any new standards for unconscionability.
REP. RADCLIFFE (123rd): Thank you. So that the areas in Section 6 which talk about various contingencies which would render an agreement unenforceable are not intended to be exclusive or even modifying as far as a standard of unconscionability in Section C of that section? Is that correct? Through you, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: Representative Scalettar.
REP. SCALETTAR (114th): Through you, Mr. Speaker. That's correct. And, in fact, under Section 6, No. 2 specifically states that unconscionability is one of the factors that can cause unenforcability of the contract. So it clearly is not intended to say that the other items constitute unconscionability.
REP. RADCLIFFE (123rd) : Thank you, Mr. Speaker. Subsection C on Line 92 states that unconscionability is a matter of law to be decided by the court. The other factors in Section 6, are they mixed questions of law and fact to be decided under certain cases by a jury or by a court? Through you, Mr. Speaker.
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DEPUTY SPEAKER HYSLOP: Representative Scalettar.
REP. SCALETTAR (114th): Through you, Mr. Speaker. Yes.
REP. RADCLIFFE (123rd): All right. So that the -- through you, Mr. Speaker. The only issue that would be removed from the consideration of a jury in terms of this contract would be the issue of unconscionability. All of these other issues, including whether there was fair and reasonable disclosure, whether there was a voluntary waiver, whether certain things had been complied with in Section 6 would all be questions of fact to be determined by the trier of fact and not exclusively by the court. Is that correct? Through you, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: Representative Scalettar.
REP. SCALETTAR (114th): Through you, Mr. Speaker. That is correct. I just want to point out that the issue of waiver has now been eliminated, however, by the Amendment, House Amendment "A".
DEPUTY SPEAKER HYSLOP: Representative Radcliffe.
REP. RADCLIFFE (123rd):
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That's correct. I stand corrected on that. That particular one was eliminated.
An agreement that is in effect now, if an individual has an agreement that is in effect currently and modifies that agreement, which law would apply, the law at the time that the agreement was entered into or the law at the time that the agreement was modified? Through you, Mr. Speaker?
DEPUTY SPEAKER HYSLOP: Representative Scalettar.
REP. SCALETTAR (114th): Through you, Mr. Speaker. I believe it would be the law at the time the agreement was made. But I believe that would be decided under existing law. Nothing in this statute changes existing law with respect to modifications of agreements.
DEPUTY SPEAKER HYSLOP: Representative Radcliffe.
REP. RADCLIFFE (123rd): Right. I'm thinking about a situation where a couple has a premarital agreement at this time. They choose to modify that agreement for whatever reason subsequently and there's what would, if we were dealing with a will situation, amount to a codicil, an addition, a supplement to that particular agreement.
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Would the existing law apply as to the entire agreement or would the supplement or addition be covered by this bill? Through you, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: Representative Scalettar.
REP. SCALETTAR (114th): Through you, Mr. Speaker. The best way I can answer that is to say that whatever the law is with respect to modifications of agreements and what law applies would apply here, too. Nothing in this bill speaks to that specifically.
REP. RADCLIFFE (123rd): Thank you, Mr. Speaker. Are there any specific -- as I recall the testimony on this bill, it was simply to codify much of what is existing law. Are there any specific clauses that are contained in standard premarital agreements at the present time that are inconsistent with this particular Act? I can think of none. I just didn't know if -- I would like to know if the proponent can give any examples of a clause that might be in an existing agreement which would now be rendered unenforceable because of this Act? Through you, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: Representative Scalettar.
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REP. SCALETTAR (114th): Through you, Mr. Speaker. I'm not aware of any section that does that.
REP. RADCLIFFE (123rd): Okay. And one final question, Mr. Speaker. On Line 43 it talks about the right of a child to support may not be adversely affected. Now, I assume, although it does not specifically say, that that would be a child born of this particular union or this particular marriage and not necessarily a child who had already been born at the time of the execution of the agreement. Is that correct? Through you, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: Representative Scalettar.
REP. SCALETTAR (114th): Through you, Mr. Speaker. I'm not sure I understood the question. But if it is would it include both of those children, the answer is yes.
DEPUTY SPEAKER HYSLOP: Representative Radcliffe.
REP. RADCLIFFE (123rd): Right. So that the right to child support if, in fact, there was a dissolution of this marriage and an agreement provided that there should be no obligation of support or provided that there would be joint
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custody and no obligation of support and structured in a particular way, a child could not be denied support because of the terms of an agreement even if that child was not a life in being at the time that the agreement was, in fact, executed. Is that correct? Through you, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: Representative Scalettar.
REP. SCALETTAR (114th): Through you, Mr. Speaker. That's correct. And it would also apply to adopted children. It would apply to any children as to whom a duty of support would otherwise be owed. Through you, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: Representative Radcliffe.
REP. RADCLIFFE (123rd): Thank you. Thank you, Mr. Speaker.
DEPUTY SPEAKER HYSLOP: Will you remark further on the bill? If not, staff and guests to the well of the House. The machine will be open.
CLERK: The House of Representatives is voting by Roll Call. Members to the Chamber. The House is voting by Roll Call. Members to the Chamber please.
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(Roll Call vote taken)
SPEAKER RITTER: Have all members voted? Have all members voted? Have all members voted? If all members have voted, the machine will be locked and the Clerk will take a tally.
(Tally taken)
DEPUTY SPEAKER HYSLOP:The Clerk will announce the tally.
CLERK: HB 6932 as amended by House "A". Total number voting, 147; necessary for passage, 74; those voting Yea, 147; those voting Nay, zero; absent, not voting, four.
DEPUTY SPEAKER HYSLOP: The bill as amended is passed.
SEN. FLEMING: Calendar page 13, Calendar 498, Substitute for HB6932, File 813, Madam President, I would move to the Consent Calendar.
THE CHAIR: Motion is to refer this item to Consent Calendar.
Without objection, so ordered.
PA 95-170-sHB 6932
Judiciary Committee
AN ACT CONCERNING THE CONNECTICUT PREMARITAL AGREEMENT ACT
SUMMARY: This act explicitly authorizes prospective spouses to make an agreement before marriage that covers property distribution and certain other issues. It requires that premarital agreements be in writing and signed by both parties and makes them enforceable even if parties receive nothing of value in return for agreeing. A premarital agreement becomes effective, under the act, when the parties marry or at some other time it specifies. After marriage, it may be amended or revoked only by a written agreement signed by both people. If a marriage is held to be void or voidable, a premarital agreement is enforceable only as necessary to avoid an unfair result.
The act specifies circumstances under which such agreements are not enforceable. Under the act, a child's right to support may not be harmed by a prenuptial agreement and any provision concerning the care, custody, visitation, or other child-related provisions may be reviewed and modified by a court.
The act authorizes a court to order the payment of spousal support, even if the agreement eliminates it, if one of the parties is eligible for public assistance at the time of separation or divorce. It also authorizes a court to decide whether a premarital agreement is unconscionable.
The act applies to premarital agreements entered into after September 30, 1995. Its provisions do not affect the validity of any premarital agreements made before October 1, 1995.
EFFECTIVE DATE: October 1, 1995
FURTHER EXPLANATION
What Premarital Agreement May Include
The act allows parties to a premarital to agree about:
1. their rights and obligations concerning any property owned by either or both of them;
2. the right to buy, sell, use, lease, mortgage, assign, or otherwise manage, control, or dispose of property;
3. the disposition of property upon separation, divorce, death, or the occurrence or nonoccurrence of any
other event;
4. the modification or elimination of spousal support;
5. the creation of a will, trust, or other arrangement to carry out the agreement;
6. the ownership rights in, and disposition of, a life insurance policy death benefit;
7. their rights under a retirement plan;
8. the choice of which state or other jurisdiction's law will govern the interpretation of the agreement; and
9. any other matter, including personal rights and obligations.
The act specifies that no part of the agreement may violate public policy or a criminal law.
Circumstances Under Which an Agreement is Not Enforceable
A premarital agreement or amendment is not enforceable if the person against whom enforcement is sought
proves that:
1. he or she did not voluntarily sign it;
2. the agreement was unconscionable when signed or when enforcement is sought;
3. before signing the agreement, the person was not provided a fair and reasonable disclosure of the
amount, character, and value of the other person's property, financial obligations, and income; or
4. he or she did not have a reasonable opportunity to consult with independent counsel.
Statute of Limitations
The act specifies that the statute of limitations for suing to enforce an agreement does not run during the
marriage. It specifically allows equitable defenses limiting the time within which the agreement may be enforced, including that a defense may be unfairly impaired by undue delay in enforcing rights under the agreement. This defense recognizes that if delay leads the adverse party to change his position as to the property or right in question, it is inequitable to let the negligent delaying party prevail. (The statute of limitations for enforcing a written contract is six years from the breach.)
BACKGROUND
Common Law Regarding Prenuptial Agreements
Prenuptial agreements relating to the property of the parties upon dissolution of the marriage are generally
enforceable under common (judge-made) law where three conditions are satisfied: (1) the contract was validly entered into, (2) its terms do not violate a statute or public policy, and (3) the parties' circumstances at the time the marriage is dissolved are so far not beyond those contemplated when they signed it that its enforcement would be unjust. The duty of each person to disclose the amount, character, and value of individually owned property is an essential prerequisite to a valid prenuptial agreement. Also, they must act in good faith and with candor and sincerity in all things relating to the agreement (McHugh v. McHugh, 181 Conn. 482 (1980)).
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House Debate: |
38 H. R. Proc., Pt. 9, 1995 Sess., p. _____.
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Senate Debate |
38 S. Proc., Pt. 10, 1995 Sess., p. ____ .
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Public Hearings |
Conn. Joint Standing Committee Hearings, Judiciary, Pt. 7, 1995 Sess., p. ___.
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