Engaged couples rarely think about prenuptial agreements unless they are coming into the marriage with vast financial differences or family businesses to consider. Usually, the only time anyone thinks of a prenuptial agreement is when they are mentioned in television shows, books, or movies. And typically, when that happens, they are viewed in a negative light.
But the reality is that a prenuptial agreement, often referred to as a "prenup" or a "premarital contract," is a legal document drafted and signed before a marriage that sets up certain contractual agreements for the marriage. This agreement is then signed by the future spouses and will go into full effect once the marriage is finalized. The agreement serves to protect the interests of both spouses should the marriage terminate from death or divorce. While these agreements can be controversial, the purpose of it is to provide both parties with a stable solution if they decide to terminate their marriage.
If you or someone you love is considering a prenuptial agreement prior to marriage or is pursuing a divorce and has questions about their prenuptial agreement, Attorney Joseph D. Lento and his Family Law Team can help. Call today.
Who is Eligible for a Prenuptial Agreement?
Like postnuptial agreements, prenups must also follow basic contract principles, including that there was an offer and acceptance, and both parties promised to do something. To qualify for a prenuptial agreement, the parties must intend to be married. The agreement itself is only valid and enforceable if the parties do, in fact, marry one another.
Prenuptial agreements may appeal to those who wish to avoid lengthy divorce proceedings or who wish to have specific items protected from being considered marital property in the event of one spouse's death or divorce. They may also appeal to individuals who have amassed a significant amount of wealth or assets and wish to protect a child's inheritance or wish to retain these items for themselves.
The court, however, will not always honor a prenuptial agreement. Certain issues may cause the court to throw out all or parts of the prenuptial agreement. For a spouse to have the prenuptial invalidated, they must present clear and convincing evidence that one of the following scenarios has occurred:
Evidence that a spouse did not voluntarily sign the agreement.
Examples of involuntary signing are when signing is done under duress or coercion. To prove coercion or duress in Pennsylvania, the party making a claim must show that they were unlawfully forced against their will or threatened with force, and a reasonable person under similar circumstances would not have, to resist signing the agreement.
However, there is an exception to coercion that courts will consider if the defending party is able to present enough evidence to support it. While duress or coercion may have been present prior to signing the agreement, if the defending party can show that the petitioning party recklessly placed themselves into the path of coercion or duress and a reasonable person would have seen that either issue was going to occur, the court will overthrow the coercion or duress argument.
Evidence that a spouse did not provide reasonable and full disclosure of wealth, assets, and debts.
Full disclosure of wealth, assets, and debts puts spouses on an even playing field and helps them have equal power when negotiating the specifics of their agreement. It allows them to understand the real impact of their decisions when it comes to their potential future after divorce.
As such, when making your disclosures, they should be in writing and included as an addendum to your prenuptial agreement. They should list the entirety of your assets, debts, and wealth, no matter how small, including inheritances, business assets, financial partnerships, or any other information that would provide the court with a full picture.
Evidence that a spouse was given fraudulent or inaccurate information pertinent to the agreement.
If a spouse fails to provide enough information to the other spouse before signing the prenuptial agreement, or if the information that is given is fraudulent or inaccurate, the other spouse will not understand the gravity of the interests they may be signing away. Thus, when pursuing a divorce, the party who believes they signed the agreement without an accurate picture of the other spouse's finances needs to present clear and convincing evidence of this fraudulent act for the court to throw out those sections – or all – of the prenuptial agreement.
A claim that the agreement was egregiously unfair.
Further, if a petitioning spouse can prove that an agreement was heavily one-sided or favors one spouse over the other and at the same time deprives the petitioning spouse, forcing them to get on public assistance, the court will most likely invalidate it.
What Does a Prenuptial Agreement Protect?
While a prenuptial agreement is meant to cover most of a person's assets, they do not cover everything. There are certain matters that will only be settled through Family Court matters. But matters that are typically protected through prenuptial agreements include:
- How property will be divided.
- Each spouse's individual property.
- Stipulations for post-divorce alimony.
- Each spouse's rights to the gifts and inheritance of the other.
- Each spouse's entitlement to death benefits from the other's insurance policy.
- Each spouse's use of property and rights to buy and sell assets after marriage.
- Management of the family business.
- Each spouse's right to property the other spouse owns.
- Any other matter agreed upon in the prenup.
Further, there are instances where a couple may choose to include a “sunset clause,” which voids the agreement when the marriage lasts a certain amount of time. The hope is that by including such a clause, the spouse who might be wary of a prenuptial agreement will feel more at ease with the idea. Generally, sunset clauses mention long periods of time, so the couple will be able to enjoy their marriage and have faith in their spouse. Then when the time comes up, the prenup will no longer be necessary.
There are other items, as we alluded to above, that couples might want to put into the prenuptial agreement that the court will not uphold, including child support, which is a right possessed by the child, not the parents. Thus, the parents cannot seek to limit or set aside child support.
If the couple has children, the court will determine what is in the child's best interest before making decisions on child support, child custody, their child's religious upbringing, or alimony pendente lite or temporary spousal support. The factors the court will look at to determine what is in the best interest of the child are the following:
- The child's preference – based on their age and maturity.
- The need for stability and education, family life, and community life for the child.
- Which parent will make sure the other parent sees the child and has a good relationship with them.
- Both parents' history of violence and abuse.
- Specific criminal convictions for either parent.
After reviewing these factors, the court is more likely to give custody to whichever parent has demonstrated that they have the best interest of the child at heart. Custody will only be shared if one or both parents apply for it, shared custody was agreed to, or the court decides it is in the best interest of the child.
It is important to remember prenuptial agreements are only meant to protect issues strictly related to the spouses and their property. The only exception to this is the determination of inheritance. This means that custody and matters of child support must be determined through separate custody proceedings, even if the divorce or marriage termination matters are resolved through a prenuptial agreement.
How a Family Law Attorney Can Help
Going through a divorce is such an emotional experience, and many couples try to mitigate the emotion by preparing ahead of time. Sometimes, this includes drafting and signing a prenuptial agreement prior to marriage. The hope is that the court will review the document and follow the stipulations it provides. In cases where it cannot provide the requested stipulation because it is about child support or custody, the court will invalidate those sections and refer the matter to another court hearing.
Working with a skilled family law attorney prior to drafting and completing a prenuptial agreement will ensure the court finds it valid when, and if, the times come. Additionally, having an attorney in your corner can help alleviate some of the burden and overwhelm you experience during a divorce.
Attorney Joseph D. Lento and his Family Law Team have been helping families around Pennsylvania navigate this new stage of their lives. He will work diligently to ensure your interests are protected. Call 888-535-3686 today for help, or schedule a consultation online. You do not need to weather this storm alone; Attorney Lento can help.