Pennsylvanians contemplating marriage may want to talk to legal counsel about the pros and cons of premarital agreements.
A prenuptial agreement is an agreement between two people who intend to marry that becomes effective at marriage. Premarital agreements deal primarily with the property rights and debts of the prospective spouses should they divorce or at death.
Some of the reasons people use prenuptial agreements include:
- Keep wealth within a spouse's family of origin or for children from previous relationships
- Keep interests in a family business, closely held business or professional practice within a family of origin or other co-owners, or otherwise intact in case of divorce or death
- Desire by one spouse not to take on debt of the other
- Keep an asset and its increase in value during marriage outside of the marital estate like a house, inheritance, stocks or retirement account
- Waive or modify the spousal rights of inheritance under state law
- Waive or predetermine the amount of alimony or spousal support in case of divorce
Pennsylvania law leans toward viewing premarital agreements in the same way as business contracts, with some exception. For example, if the parties include provisions about child custody, visitation or child support, the court may modify those terms if there are "changed circumstances." In general, should there be a dispute over the agreement, a court will interpret it using traditional contract principles.
Some other states regulate prenuptial agreements more heavily than Pennsylvania such as requiring that the party who does not draft the agreement have time to consult his or her own lawyer before signing.
It is a good idea to talk to an attorney as early as possible about premarital agreement questions and concerns. An attorney will help to make the agreement fair and explain legal issues that might not be obvious. Plus, negotiating an agreement that is likely to be enforceable is in everyone's interest.
Challenging a prenuptial agreement
State statute provides that if a spouse wants to have a premarital agreement set aside as unenforceable, that spouse must prove with clear and convincing evidence either that he or she did not sign the prenup voluntarily or that before the agreement was signed, all of these were true:
- The spouse challenging the agreement did not get a "fair and reasonable disclosure" of the other spouse's assets and debts.
- The challenging spouse did not "voluntarily and expressly waive, in writing" his or her right to disclosure (beyond what was provided).
- The spouse did not have "adequate" understanding of the other's property and debt.
A spouse can also challenge the validity of a premarital agreement with clear and convincing evidence of fraud, misrepresentation or duress under traditional contract law.
This article only introduces a complicated area of Pennsylvania law. Consult a lawyer with questions and for advice and guidance.
The family lawyers at Testa & Pagnanelli, LLC, with offices in Philadelphia, Norristown and Radnor draft, review, negotiate, challenge and defend prenuptial agreements for clients throughout the greater Philadelphia area and Montgomery County.