Prenuptial Agreements in Pennsylvania

Increasing divorce rates have nearly erased the negative stigma that once plagued prenuptial agreements. Many couples who fear divorce use prenuptial agreements as a safeguard. Rather than ruining wedding plans, a prenuptial agreement can offer an added sense of security in knowing how financial issues will play out in the event of death or divorce.

The laws governing prenuptial agreements vary 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 you have questions, you should contact a local family attorney for advice.

What Is a Prenuptial Agreement?

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 prenups, including the requirement that the agreement must be in writing, and both future spouses must sign it.

Pennsylvania distinguishes unilateral releases (a release of rights to pursue claims which is effective upon signing) from prenuptial agreements (mutual promises and a release of rights effective only upon death or divorce). A prenup, unlike a unilateral release, only goes into effect if the couple marries. A premarital contract may resolve expenses during the marriage, alimony upon divorce and the division of property, assets, and debts upon death or divorce.

Who Should Get a Prenuptial Agreement?

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, prenups can lead to fewer arguments in a marriage since couples resolve expenses and financial responsibilities beforehand.

Individuals with significant wealth or assets may use a prenup to shield assets from a soon-to-be spouse. In other cases, parents may want to protect their children's inheritance. Finally, a prenup can also serve as a master plan for alimony awards and property division if the marriage ends in divorce.

Anyone who seeks additional financial security in a marriage or hopes to avoid a drawn-out divorce should consider entering into a premarital contract.

What Issues Can a Prenuptial Agreement Cover in Pennsylvania?

Prenuptial agreements usually address the same issues contained in a divorce order. However, couples can tailor prenups to meet their own needs. A premarital contract may address one or more of the following subjects:

• each spouse's right to property owned by either spouse
• the division of assets and debts if the couple divorces or either spouse dies
• either spouse's entitlement to spousal support or alimony
• each spouse's right to buy, use, spend or sell assets during the marriage
• each spouse's right to the gifts or inheritances of the other
• management of a family business
• each spouse's entitlement to death benefits from the other's insurance policy, and
• any other matter agreed upon by the couple.

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:

• the religious upbringing of children
• temporary alimony paid while a divorce is pending, or
• child support or child custody issues.

Can a Prenuptial Agreement Resolve Child Custody and Child Support in Pennsylvania?

Parents can't resolve child support or custody issues in a premarital contract. A child—not the parents—possesses the right to child support. Thus, parents can't enter into premarital agreements that decide, limit, or set child support or do away with it altogether.

Moreover, parents and the courts cannot decide child support and custody arrangements until the parties are separating or divorcing. A child's best interests are paramount to any custody decision, and the judge must evaluate these interests at the time the custody decision is pending, not in advance.

A judge will disregard custody provisions in a premarital agreement. However, if the contract contains provisions regarding custody, all other provisions in the agreement are enforceable, except the custody provision. Instead, a judge will base custody decision on the best interests of the child.

Will a Pennsylvania Court Enforce My Prenuptial Agreement?

Pennsylvania is in the minority of states that haven't adopted the Uniform Prenuptial Agreement Act (UPAA). Instead, Pennsylvania statutory law and court decisions detail the rules and regulations for prenuptial agreements.

Generally, the court will uphold a prenuptial agreement, unless there is clear and convincing evidence showing that:

• one spouse did not sign the agreement voluntarily
• the agreement was unconscionable (severely unfair) because before the parties signed:
• one spouse did not provide full and reasonable disclosure of assets and debts
• the defrauded spouse did not expressly waive in writing the right to disclosure of the other spouse's finances, and
• the defrauded spouse did not have adequate knowledge of the other spouse's finances.

Prenuptial agreements must follow basic contract principles. A prenup can't be unconscionable or extremely one-sided. For example, the court may throw out a prenup provision the prohibits alimony if enforcing it would leave one spouse destitute or on government assistance. Nevertheless, in most cases, judges will enforce a reasonably fair prenup if there's no fraud, duress, or significant misrepresentation.

Prenups can be complicated, and you may need the help of an attorney to understand what rights you're obtaining or giving up by signing the contract. If you have additional questions regarding prenuptial agreements, contact a Pennsylvania family law attorney for advice.