The negative stigma that once plagued prenuptial agreements has been mostly erased by increasing divorce rates. Many couples fearing divorce use prenuptial agreements as a safeguard. Rather than ruining wedding plans, a prenuptial agreement can be a protection in marriage and offer security in the event of death or divorce.
The laws governing prenuptial agreements differ from state to state. This article provides an overview of prenuptial agreements in Pennsylvania and discusses the elements needed to make an agreement enforceable. If after reading this article you have questions, please contact a local family attorney for advice.
A prenuptial agreement, sometimes called a “premarital contract” or “prenup,” is a contract made between two individuals in anticipation of marriage. General contract rules apply to prenuptial agreements, including the requirement than an agreement be written and signed by the future spouses. Pennsylvania distinguishes unilateral releases (a release of rights to pursue claims which is effective upon signing) from prenuptial agreements (mutual promises and release of rights effective only upon death or divorce). Moreover, a prenuptial agreement, unlike a unilateral release, only goes into effect if the couple actually marries. A premarital contract may resolve expenses during marriage, alimony upon divorce and the division of property, assets and debts upon death or divorce.
There’s a myriad of reasons a couple may use a prenuptial agreement. Anyone who seeks additional financial security in a marriage or hopes to avoid a drawn-out divorce should consider entering into a premarital contract. In many cases, prenuptial agreements can lead to fewer arguments in a marriage since expenses and financial responsibilities are usually resolved beforehand.
Certain individuals with significant wealth or assets may use a prenup to shield assets from a soon-to-be spouse. In other cases, a parent may want to protect his or her child’s inheritance through a prenuptial contract. Finally, a prenuptial agreement can also serve as a master plan for alimony awards and property division if the marriage ends in divorce.
Prenuptial agreements usually address the same issues that would be contained in a divorce order. However, couples can tailor prenuptial agreements to meet their own individual needs. A premarital contract may address one or more of the following subjects:
While a prenuptial agreement can address many areas of potential conflict among couples, there are limitations. Specifically, a prenup can’t resolve any of the following issues:
Parents can’t resolve child support or custody issues in a premarital contract. A child possesses the right to child support – not his or her parents. Thus, parents can’t enter into premarital agreements that decide, limit or set child support or do away with it altogether. Moreover, child support and custody arrangements must be decided at the time parents separate and can’t be decided beforehand. A child’s best interests are paramount to any custody decision and those interests must be evaluated and approved by a judge.
Any custody provisions in a premarital agreement will be ignored when a judge decides custody. A prenuptial contract is still enforceable if it contains provisions regarding custody; however the custody provisions themselves are not enforceable. Instead, a judge will base his or her custody decision on the best interests of the child.
Pennsylvania is in the minority of states that haven’t adopted the Uniform Prenuptial Agreement Act (UPAA). Instead, prenuptial agreements are regulated by Pennsylvania statutory law and court decisions.
Generally, a prenuptial agreement will be upheld unless clear and convincing evidence shows that:
Prenuptial agreements must follow basic contract principles. A prenup can’t be unconscionable or extremely one-sided. For example, a prenup provision the prohibits alimony may be thrown out if enforcing it would leave one spouse destitute or on government assistance. Nevertheless, in most cases, a reasonably fair prenup will be upheld as long as no fraud, duress, or major misrepresentations took place.
Prenuptial agreements can be complicated and you may need the help of an attorney to understand what you are getting into. If you have additional questions regarding prenuptial agreements, contact a Pennsylvania family law attorney for advice.