While the prenuptial agreement seeks to resolve issues prior to a marriage, a postnuptial agreement is a contractual agreement that resolves issues that arise during the marriage after the vows have been made. The goal of a postnuptial agreement is to resolve issues within a marriage and make possible preparations for divorce, should the couple decide to pursue one.
Many people are reluctant to consider a postnuptial agreement and worry that it will trigger the end of their marriage. But the reality is all it does is provide protection for everyone involved. A divorce proceeding can be emotionally taxing and incredibly stressful for both parties. A postnuptial agreement made prior to a divorce, or a separation, can help reduce such stress and turmoil.
If the idea of a postnuptial agreement sounds overwhelming, Pennsylvania family law Attorney Joseph D. Lento and his Family Law Team can help. Call today.
Postnuptial Agreement in Pennsylvania
When parties are getting divorced, if there is no pre- or postnuptial agreement in place, the law will use a process of equitable distribution to divide the marital property. In Pennsylvania, the courts use the principle of equity to distribute marital property and debts. So, it is up to the court to determine what is considered marital property and debt and how it should be divided equally.
To determine a fair or equitable division of property, the court will look at several factors, including:
- Length of the marriage
- Previous marriages
- Age of the parties
- Tax implications
- Health of both parties
- Income of both parties
- Who will have custody of the children
- Did either party advance the other's income
- What was the standard of living during the marriage
- What is the employability of both parties
- Amount of nonmarital assets
- Are there any prenuptial agreements
If there is a valid prenuptial agreement in place, the court will uphold those stipulations and not pursue equitable distribution. Under Pennsylvania law, marital agreements are viewed as if they are business contracts; that is, the idea of “fairness” or access to legal counsel is of no matter to Pennsylvania courts. As such, if they believe the agreement was an informed negotiation between the parties, the court will most likely uphold the stipulations it makes.
Thus, postnuptial agreements are only invalidated for specific reasons, including if one party failed to fully and fairly disclose all their assets before the contract was signed, and for reasons a typical business contract would be invalidated – with clear and convincing evidence to support the decision.
What Does a Postnuptial Agreement Protect?
Much like a prenuptial agreement, a postnuptial agreement is put in place to protect the interests, both financial and otherwise, of both parties in the event of a divorce, and sometimes even for the duration of the marriage. Most of the time, prenuptial agreements are focused on the protection of financial assets, but a postnuptial agreement will even go so far as to cover the day-to-day issues of the marriage, including:
- Setting budgets: At times, a budget should be legally agreed upon if a married couple is facing difficulty in finances. This is commonly seen in postnuptial agreements seeking to restore, balance or preserve a marriage.
- Setting up consequences for behavior that is destructive to the marriage: In a struggling marriage, both parties may want to set up consequences, financially or otherwise, to prevent the behavior from either side that could jeopardize the marriage. Postnuptial agreements can set up terms to try to create consequences for behaviors such as infidelity, abuse, or addiction.
- Post-divorce financial arrangements: If the spouses in a marriage assume that it may fall apart, they may draft a separation agreement or a postnuptial agreement that sets forth specific terms of the divorce. Discussing financial arrangements can be a part of this.
- Dividing assets in the event of a divorce: The division of assets may also be a part of a postnuptial agreement to prevent a battle during a divorce phase.
- Marital or parental duties: While custody is not normally covered in marital agreements, spouses may want to include certain marital, household, or parental duties in their postnuptial agreement. This will pertain to chores, responsibilities, and even some degree of childcare; however, most childcare questions are resolved through custody proceedings.
Postnuptial agreements do not always need to be focused on divorce. However, the general goal of these agreements is to bring a contractual order to either preserve the marriage by means of agreeing to ground rules for both spouses or to provide a stable idea of what should happen if the marriage is to end in divorce.
Additionally, postnuptial agreements can be amended later in the marriage as the relationship evolves and the family dynamics change. Many times, postnuptial agreements go hand in hand with a separation agreement or a divorce decree if a marriage cannot be sustained.
Some Postnuptial Stipulations Cannot Be Enforced
Even though postnuptial agreements are meant to provide for issues that might occur after the marriage ends, there are some stipulations that a court cannot enforce even if both parties agreed to it prior to signing the agreement. For instance, you cannot specify provisions for child support or child custody.
What Makes a Postnuptial Agreement Valid
While every state has some version of a postnuptial agreement, most states treat them like suggestions and determine whether they are valid by looking at issues of fairness or access to legal counsel. But under Pennsylvania law, marital agreements are treated more extremely.
For a postnuptial agreement to be considered valid in Pennsylvania, it must abide by Pennsylvania contract law standards – an offer must have been made and accepted, and a promise or service must be exchanged. Thus, a postnuptial agreement can't just be one side promising something to the other without the other promising things in return.
Therefore, courts in Pennsylvania will assume that postnuptial agreements are valid, and it is the responsibility of the party claiming it is invalid to prove that claim.
At a minimum, the test for validity includes:
- Whether the agreement was in writing;
- The assets, income, and property were fully disclosed, or the disclosure was waived by one party;
- Both members signed the agreement voluntarily; and
- It was signed by both spouses and notarized.
If even one of these factors can be proven not to have happened, it would invalidate the agreement.
Waiving Fair Disclosures
The most important issue a postnuptial agreement tends to cover is whether both spouses have fully and fairly disclosed all their assets and liabilities to the other before entering into the agreement. One spouse can waive the right to have full disclosure of the other spouse's assets and liabilities, but they need to understand they are waiving an important right away. If the waiving was done under any type of fraud, duress, or coercion, the postnuptial agreement can be set aside and made invalid.
As such, it is incredibly important to work with a skilled family law attorney when drafting your postnuptial agreement to not only ensure it is valid but that you aren't being coerced into signing something you normally would not.
Pros and Cons of Postnuptial Agreements
For the most part, engaged couples do not foresee their marriage ending and don't consider drafting and signing prenuptial agreements. A postnuptial allows them to still fully assess their finances so that they can truly consider their future and what might happen if their relationship were to change.
While most couples agree that postnuptial agreements are always beneficial in one way or another, some couples should not consider creating one. For instance, if either party feels it will create unnecessary tension in the relationship or not provide any benefits for the future, it should not be created. A postnuptial agreement should also be avoided if one party feels that it would unfavorably benefit the other spouse, who makes more money.
How an Experienced Family Law Attorney Can Help
The idea of a postnuptial agreement might sound confusing or overwhelming to pursue, especially if you and your partner are not interested in separation or divorce. But planning for outlying possibilities never hurts, even when there is only a tiny chance they might come to fruition. Postnuptial agreements are a form of protection for the parties involved so that they can focus on healing and moving forward if divorce or death occurs.
If you or someone you love is considering a postnuptial agreement but isn't sure where to start or is involved in other family law matters, the Lento Law Firm can help.
Attorney Lento is an experienced and highly respected family law attorney in Pennsylvania with a passion for advocating for his clients. He understands how important these steps can be to an easy divorce proceeding and will work diligently to ensure the best possible outcome for your case. Call 888-535-3686 today or schedule a consultation online.