A marriage is a time of joy and anticipation, but the possibility of divorce leaves many engaged couples nervous about how a divorce might affect them financially. A prenuptial agreement takes much of the uncertainty out of the situation. A prenuptial agreement (or "prenup") is a legally binding contract between two people about to marry. Couples can decide what happens to assets, which party will keep real estate or personal property, how they will handle inheritance to children, and how they will divide or plan for debt. However, not every matter can be covered by a prenuptial agreement. The court generally will not enforce provisions as to child support in a prenuptial agreement. That being said, a prenuptial agreement may cover some financial matters affecting child support.
Our attorneys can help you understand Pennsylvania's complex laws surrounding prenuptial agreements and child support. Call the LLF Law Firm Family Law Team today at 888.535.3686, or use our contact form to set up a confidential consultation.
Pennsylvania Law on Prenuptial Agreements
Pennsylvania law requires that prenuptial agreements be voluntary and meet some basic standards of fairness. When a prenuptial agreement is executed according to the law, it is typically binding on the parties. However, one party often seeks to invalidate an agreement they signed years earlier. In 2004, the legislature enacted 29 Pa.C.S. §3106, requiring that to invalidate a prenuptial arrangement:
- A party to the agreement must show they did not voluntarily sign the agreement or
- A party must show that before the execution of the agreement, they 1) were not provided with a fair and reasonable disclosure of assets or other financial information, 2) did not voluntarily waive a right to disclosure of assets or financial information, and 3) did not have adequate knowledge of assets and other financial information of the other party.
Pennsylvania law recognizes that a prenuptial agreement must be voluntary to be valid. Even if it is voluntary, some provisions are not enforceable, and the parties should not include them in the agreement.
Things That Should Not Be Included in a Prenuptial Agreement
Because Pennsylvania courts will not enforce some provisions in prenuptial contracts, it is good policy not to include them. These provisions include:
Child Support.
The court has the final say and will determine children's financial support issues. Because child support belongs to the child and not either parent, a parent cannot agree to waive or limit support.
Child Custody.
In Pennsylvania, the court decides custody of children based on the "best interest of the child." The court will not enforce any prenuptial agreement regarding custody.
Illegal Actions.
The parties cannot agree to do anything that violates Pennsylvania law in a prenuptial agreement.
Unnecessary Personal Details and Matters.
A prenup is an agreement as to financial matters. It should not include chores or child-rearing agreements unless the details are financial. If these things are important to you, you can place them in a separate document. If a court sees too many things in a prenuptial agreement that are invalid or concerning personal matters, they may see the agreement as frivolous and ill-considered. This makes a prenuptial agreement vulnerable to being struck down by the court.
While the parties cannot make an enforceable agreement as to child support in a prenuptial agreement, they can define financial assumptions that will underline the marriage.
Traditional Gender Roles and Prenuptial Agreements
The news media has used the term "trad wife" to label a situation where one party stays home and ceases work, and the other party agrees to family financial responsibility. If such an agreement exists between the parties before marriage, the parties may wish to include provisions to protect the financially weaker spouse, such as:
- Asset protection is provided for property the traditional spouse brings into the marriage.
- Addressing alimony or a lump sum that may equalize the parties in the event of divorce.
- Agreement that the financially responsible spouse provides health insurance, access to bank accounts, and life insurance.
While the parties cannot agree on child support in a prenuptial arrangement, these sorts of agreements may lead the court to limit the imputation of income or make other modifications to child support later.
Viability of Prenuptial Agreement With Unenforceable Clauses
If a couple agrees to child support in a prenuptial agreement, the court will likely treat that provision as unenforceable. This raises a question about the viability of the remainder of the prenuptial agreement. Are agreements regarding property division, alimony, or other provisions enforceable, or is the entire prenuptial agreement invalidated? Usually, an unenforceable clause in a contract is severable. The court can "carve out" unenforceable provisions and enforce the remainder of the prenuptial agreement. That said, it is a good idea not to put an unenforceable provision in a contract.
Child Support in Pennsylvania
In Pennsylvania, both parents have an obligation to support a child. The right to child support belongs to the child and not either parent. Parents cannot make agreements that might change a child's right to child support without the court's review and agreement. To discuss and negotiate for child support, you will need an understanding of how child support is set in Pennsylvania.
How Child Support is Set in PA
Pennsylvania law provides guidelines for child support that break down who is responsible and who can file. The amount of a child's support obligation depends on several factors, including:
- The income of the parties.
- Living expenses of the parties.
- Living arrangements, including whether one parent has primary physical custody.
- Expenses for health insurance and who is providing and paying.
- Expenses for childcare and other extraordinary expenses, such as when a child with a disability has special needs.
If one parent has primary physical custody, the other parent will typically make child support payments to that parent. However, even in situations of shared physical custody, the higher-income parent may be required to pay support to the lower-income parent. Pennsylvania child support laws look at the entire situation and focus on ensuring that the child or children receive adequate financial support from both parents.
Postnuptial Agreements and Child Support
As stated earlier, child support agreements included in a prenuptial agreement are not enforceable. Does this mean you can never agree with your ex regarding child support? No, but remember that the court must approve your agreement. The parties may seek to make a postnuptial arrangement for child support through formal mediation or negotiation.
If you and your ex decide on a fair figure, you can present this figure to the court, often in a joint motion. The agreed-upon amount must be based on real figures, and the parties must inform the court of income and other circumstances. The court will decide whether a particular child support amount is fair and equitable and provides for the reasonable needs of the child or children. But if both parties are represented by counsel and the parties can agree, the court is likely to approve your agreement as to child support.
Setting Child Support in Pennsylvania
Child support in Pennsylvania is formulaic, but determining income can be difficult, especially if income is variable and unpredictable. There are many situations where parents may disagree as to the amount of child support. For instance, one parent may not be working, and the court may "impute" income to that spouse to maintain fairness, or a party may temporarily work a great deal of overtime. It is also important to note that Pennsylvania law allows the parties to deduct numerous things from gross income, and this will limit the income considered for child support. Before agreeing to any amount of child support, you should consult the experienced attorneys at the LLF Law Firm. They understand each county's laws and rules and how they affect how you file and set child support.
Shared Custody and 2022 Rule Changes
The rules about child support and custody changed in 2022, and these changes will affect many parents. The 2022 rules define "shared physical custody" as each party having at least 40% or more overnight custodial time. The child custody arrangement must be no more lopsided than 60/40 to constitute a shared custody arrangement. If the party obligated to pay child support has the child or children at least 40% of the time, they are entitled to a lowering of the child support obligation called for under the rules. This rule clarifies how to set child support when physical custody is not 50/50 but is more than 60/40.
Child Support Estimator Tool
The Pennsylvania Child Support Program has an online Child Support Estimator Tool. Parents can use the tool to estimate child support obligations and explore how different variables affect child support. It is important to remember that this is an estimate of child support obligation. It cannot advise how the laws oversee special circumstances and issues. This tool is helpful in uncomplicated situations, but the more complicated your income or expense situation becomes, the less likely you are to get an accurate amount. The best policy is to consult an attorney before making any agreement or assumption regarding child support. The parties often significantly overestimate or underestimate support using this tool. One party will be paying for this support obligation for years, and revisiting child support can take time, involve additional expenses, and cause frustration. Make sure you set it right the first time.
Special Circumstances and Child Support
To accurately use the Estimator Tool, you must have basic information about income, expenses, and number of children. Deciding on the figures to input into the tool is complicated, especially in some circumstances. The parties may have questions, such as:
- If the income of one or both parties varies widely, what figure would you use for income?
- If one party has been working a lot of overtime because of divorce expenses, do you include the overtime in the income figure?
- What about an existing obligation for children from a prior relationship?
- How do we manage special expenses if my child has additional expenses due to a disability? How do we figure in private school tuition?
- When is a payment to a retirement account allowed as a deduction from income?
If any of these questions apply to your situation, consult the experienced child support attorneys at the LLF Law Firm. We can advise you on handling the situation and setting the support amount fairly and accurately.
Example of Child Support Using Estimator Tool
The Child Support Estimator Tool can help you understand how child support is calculated in Pennsylvania. Consider the following scenario:
Parents A and B have one child. Parent A has a net income of $10,000 monthly, and Parent B has a net income of $5,000 monthly. Parent B is the custodial parent and pays $250 in childcare expenses monthly. Parent A has the child less than 40% of the time and pays $150/month to keep the child on their health insurance. There are no other special circumstances or needs.
The combined gross income minus tax and other allowable deductions is $11,279, and the basic child support amount is $2,537. Because Parent B earns almost 2/3 of the combined income figure, they are obligated for $1,641.95 in support plus $161.80 in childcare expenses minus $52.92 in health insurance premiums for a support obligation of $1,750.83. Parent B pays Parent A $1,750.83.
This example assumes that one parent is custodial and that the parties have stable income and expenses. For more complicated situations, consult the experienced child support attorneys at the LLF Law Firm.
The LLF Law Firm
The LLF Law Firm can help you reach a legal and enforceable prenuptial agreement. While this agreement may not be binding for child support issues, a prenuptial agreement may address other financial issues that affect child support. If you have signed a prenuptial agreement that you feel is invalid, we can advise and help with these issues.
The legalities of prenuptial agreements may seem overwhelming and confusing. Our attorneys can help you understand Pennsylvania's complex laws surrounding prenuptial agreements and child support. Call the LLF Law Firm Family Law Team today at 888.535.3686, or use our contact form to set up a confidential consultation. Enjoy peace of mind knowing you are financially protected and secure.
