Can a Connecticut Court Order Temporary Alimony or Counsel Fees When a Prenuptial or Postnuptial Agreement Precludes It?

By: Sarah E. Murray

It is becoming more common for people to enter into Prenuptial or Postnuptial Agreements, especially in Fairfield County, Connecticut. Some parties agree in their Prenuptial or Postnuptial Agreement that neither party shall pay counsel fees to the other and/or that temporary alimony, i.e., alimony awarded to one spouse during the pendency of the divorce case, will not be requested or awarded.  When a divorce action involving a Prenuptial or Postnuptial Agreement is filed and one spouse requests temporary alimony or counsel fees in contravention of the terms of the agreement, the question then becomes whether the agreement will govern or whether the trial court has the authority to make such awards alimony irrespective of the agreement’s terms. This particular issue tends to arise in divorce cases where one spouse is contesting the validity of the Prenuptial or Postnuptial Agreement.

In 2022, the Connecticut Supreme Court issued a decision in the matter of O.A. v. J.A., and determined that a trial court has the discretion to award temporary alimony and counsel fees without first determining the validity of the Prenuptial or Postnuptial Agreement. In that case, the parties had entered into a Postnuptial Agreement which the Plaintiff was challenging as part of the divorce case. During the pendency of the divorce, the Plaintiff filed motions for temporary alimony and for counsel fees, which were heard by the trial court. The Defendant argued that the parties’ Postnuptial Agreement precluded these awards and that the trial court should first determine the validity of the Postnuptial Agreement before addressing the Plaintiff’s motions. The trial court disagreed, granted the motions, and ordered both temporary alimony and counsel fees to be paid by the Defendant. The issue of whether the Postnuptial Agreement was enforceable or not was left to the final trial in the case. The Defendant appealed the trial court’s orders.

On appeal, the Defendant argued that the trial court should be required to determine the validity of the underlying agreement (in this case, the Postnuptial Agreement) before addressing issues of temporary alimony and counsel fees. According to his logic, if the Plaintiff were unsuccessful in challenging the Postnuptial Agreement and the agreement were held to be valid and enforceable, the trial court would then be precluded from making temporary alimony and counsel fee awards. The Plaintiff, on the other hand, argued that Connecticut law and public policy supported the trial court’s orders in awarding temporary alimony and counsel fees without determining the validity of the Postnuptial Agreement.

The Connecticut Supreme Court affirmed the trial court’s orders, concluding that the broad discretion granted to a trial judge in deciding a dissolution action should also include the discretion to determine that the validity of a Prenuptial or Postnuptial Agreement should be decided at the end of the case, after each party has “a full and fair opportunity to litigate all issues in the case at a trial on the merits.” The Supreme Court noted that, under the Defendant’s argument, the Plaintiff, as the less financially advantaged spouse, would have been forced to present her case on the validity of the Postnuptial Agreement without the benefit of temporary support and counsel fees to financially permit her to do so. In reaching the decision, the Supreme Court did not foreclose the trial court’s ability to decide the enforceability of a Prenuptial or Postnuptial Agreement prior to or simultaneously with a request for temporary alimony or counsel fees if a trial court concluded that it would have the ability to do so without working an injustice to either party. A trial court can also take the agreement’s existence into account, without deciding its enforceability, when considering a request for temporary alimony or counsel fees. The main takeaway from O.A. v. J.A. is that the trial court has discretion to delay a decision on the enforceability of a Prenuptial or Postnuptial Agreement until the end of the case.

Broder Orland Murray & DeMattie LLC is a Westport and Greenwich matrimonial law firm. We have experience in dealing with all aspects of Connecticut divorce cases, including litigation in cases involving Prenuptial or Postnuptial Agreements. We encourage people thinking about divorce to schedule a consultation with us to have their questions answered and to have the process explained to them.