This Connecticut case raised the age old question of how to get out of a properly executed prenup. The court of appeals basically decided, you can’t.
Roberta Delente, 42, was a Brazilian model who was married to Peter McKenna, a partner in a law firm. The two executed a prenup 5 days prior to their 1999 nuptials. As expected, the prenup said that they kept all their property they brought to the marriage and their only “joint” property was a home they owned in Stallion Trail, Greenwich, Connecticut.
The agreement had a clause that said something to the effect that if an “operative event” occurred, the husband would pay the wife between $50,000 to $100,000, depending on whether the operative event occurred before or after their first wedding anniversary.
Now, what is an “operative event?” According to their agreement it was defined as:
The earliest of the following to occur: “commencement of an action for a judgment of divorce, separation…or annulment of a voidable marriage; or…[w]ritten notice by one party to the other party…of an intention to seek a judgment of separation, divorce…or annulment of a void marriage.
Make a long story short, the husband seems to have pulled a sneaky move that could be deemed an “operative event” in that about a month after the nuptials, he commenced a divorce action. Which he retracted. And they reconciled.
Then 3 days before their first anniversary, he hit her with another notice that he would file for divorce.
So he filed the divorce papers and he paid her $50,000 pursuant to the prenup.
Their divorce didn’t get underway till 2005 because it looks like they continued to be husband and wife and she didn’t answer for some time.
The trial itself started in 2006, after she answered.
The wife tried to void the prenup stating that “the agreement was obtained through misrepresentation and nondisclosure of material facts, and unconscionability.”
Make a long story short, the court was not persuaded by any of the wife’s claims and threw out her case. She won’t get a dime more than the $50,000 in the prenup, she gets no alimony, non of his pension, plus she had to pay her husband a bunch of money at 8% interest for several “promissory notes” he wrote her.
She appealed the trial court.
The Appellate Division threw out her case and said what ever the trial court decided would stand.
A part of the problem was when she entered an answer to her husband’s original divorce papers, she didn’t raise any “affirmative defenses” such as unconscionability and concealment of material fact. Nor did she prove same.
The court opined that according to Connecticut Practice Book some defenses “must be specifically pleaded and proved.”
Case of interest for that ruling is Kosinski v. Carr, 112 Conn. App. 203,2009 N6, 962 A 2d 836 (2009)
And McCarthy v. Santangelo, 137 Conn. 411.
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