Most couples enter marriages hoping they will last forever, but unfortunately, many marriages will end in separation or divorce. A prenuptial agreement can protect your assets and save you money in the event of divorce. It is critical to understand, however, that domestic violence can affect the enforceability of a prenuptial agreement.
What Is a Prenuptial Agreement?
A prenuptial agreement (often called a "prenup") is a contract between two people about to marry that establishes property and financial rights should the marriage end in divorce. It can establish which party gets particular assets and provide a financial plan.
Who Needs a Prenuptial Agreement?
Anyone considering marriage should discuss financial matters with their future spouse and agree to financial arrangements should the relationship end. Even parties without many assets may be in a very different financial situation at the time of a divorce. Further, everyone has an asset or something of value they wish to protect. Many experts believe that prenuptial arrangements can foster a sense of trust between the parties. If the marriage is a disaster, a prenuptial agreement can help the parties end it quickly and amicably. These agreements are not just for the rich and famous. Prenuptial agreements can help protect all couples and strengthen financial trust and accountability.
Things That a Prenuptial Agreement Will Not Cover
Prenuptial agreements are helpful tools to iron out financial arrangements in the event of divorce. But some things cannot be settled by a contract between the parties, including:
- Child Support.
Because the right to child support belongs to the child and not to the parent, neither parent can bargain away child support. A prenuptial agreement can cover financial matters that might affect child support, but the parties cannot agree to set or limit child support without court approval.
- Child Custody.
Under Pennsylvania law, the court will determine custody based on the "best interest of the child." The parties cannot make a legally binding agreement as to which party will have custody of a child should they divorce.
- Illegal Actions.
The parties cannot agree to do anything that violates Pennsylvania law in a prenuptial agreement.
- Personal Matters.
A prenuptial agreement aims to divide finances should the parties divorce. It should not contain purely personal matters, such as the division of chores or child-rearing principles. A prenuptial agreement containing too many of these types of provisions will appear frivolous or unserious. The court may hesitate to enforce a prenuptial agreement with unenforceable or frivolous clauses.
Is a Prenup with Unenforceable Clauses Entirely Unenforceable?
Sometimes, a prenuptial agreement includes an unenforceable clause. Does this mean the entire agreement is unenforceable? No, not typically. Usually, the court can "carve out" an unenforceable provision and enforce the remainder of the prenuptial agreement. Still, it is a good policy to include only enforceable provisions in a contract. Your attorney will advise which terms are enforceable and valid and which are not.
Things a Prenuptial Agreement Will Cover
A prenuptial agreement can cover most financial matters and assets in a marriage, including:
- Marital Residence
A prenuptial agreement can cover which party will receive the marital residence after divorce and under what terms.
- Spousal Support
With some limitations, the parties may agree on spousal support or alimony.
- Division of Assets
The parties can agree on the division of personal property, bank accounts, investments, and other assets.
- Inheritance of Prior Children
At the time of marriage, the parties may wish to agree on how they will handle inheritance issues for children from prior marriages or relationships.
- Division of Business Assets.
Often, marital partners will share the ownership or control of a business. The prenuptial agreement can spell out how the parties will manage the division of business assets in the event of divorce.
The parties can agree on most financial matters in a prenuptial agreement, and every agreement should be tailored to the needs and wishes of the parties.
Pennsylvania Laws on Prenuptial Agreements
In the past, Pennsylvania courts required that prenuptial contracts or arrangements be "fair" to both parties, particularly protecting a financially dependent or weaker spouse. 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 sign the agreement voluntarily or
- A party must show that before the execution of the agreement, they 1) were not provided a fair and reasonable disclosure of property or financial circumstances, 2) did not voluntarily express or waive a right to disclosure of property or financial circumstances, and 3) did not have adequate knowledge of the property or financial circumstances of the other party.
Common Law Regarding Coercion, Duress, or Undue Influence
The court will also consider common law contract doctrines in addition to Pennsylvania law regarding prenuptial agreements. Remember that a prenuptial (or postnuptial) agreement is first a contract. Like any contract, it is invalid if signed under duress, coercion, or undue influence.
To invalidate a prenuptial agreement, a party may show that they were coerced or in a state of duress when they signed the contract. This doctrine may come into play in cases of domestic violence or physical or mental abuse. That is, if a party has experienced or reported domestic violence during the marriage, they may also allege that fear of domestic violence led to them signing a prenuptial agreement. They may allege that their partner's propensity for violence caused them to sign under duress for fear of being abused. The party must prove this by a preponderance of the evidence standard and present solid and reliable evidence of coercion or duress.
What Makes a Prenuptial Agreement Unenforceable
As stated earlier, some things can make an entire prenuptial agreement unenforceable, including:
If the prenuptial agreement is not voluntary.
An entire prenuptial agreement is unenforceable if it is not voluntary. That is, a party did not sign the agreement voluntarily. This may mean one party forced the other to sign by threats, intimidation, or fear.
If a party did not provide fair and reasonable disclosures and the other party did not waive their right to these disclosures.
In many relationships, one party has more access to financial information than the other. To be enforceable, each party must make a fair and reasonable disclosure of essential information unless the other party waives their right to it.
If a party did not have adequate knowledge or opportunity concerning the other party's financial circumstances.
A prenuptial agreement may be unenforceable if a party did not have adequate knowledge or the opportunity to gain knowledge of the other party's financial circumstances. Even if the other party did not intentionally fail to disclose financial information, there are situations where one party did not have adequate information or opportunity to make a sound decision about a prenuptial agreement. This may mean that the entire prenuptial agreement is unenforceable.
If a party signed the prenuptial agreement under duress, coercion, or undue influence.
A prenuptial agreement must not have been signed under duress, which means that a party was forced to sign or illegally pressured into signing it. If one party threatens to hurt or harm the other and forces them to sign, the agreement will not be enforceable.
Voluntary Nature of Prenuptial Agreements
Pennsylvania law emphasizes that a prenuptial agreement must be voluntary. Sometimes, a party to a prenup may allege that they did not sign voluntarily because the other party presented the agreement on the eve of a large and elaborate wedding. Or they may allege that their future spouse gave them an ultimatum to sign that calls into question the voluntary nature of the agreement. A threat to call off a wedding may not be adequate in and of itself to show a lack of voluntary agreement. But a pattern of domestic violence is another matter.
If a party can show a pattern of physical or mental abuse predating the agreement, the argument that the agreement was not voluntary is much stronger. This is particularly true if violence or threats of violence took place before the execution of the prenuptial agreement.
Pennsylvania Laws on Domestic Violence
Pennsylvania law takes acts of domestic violence very seriously. There is no specific crime of domestic violence; rather, "domestic violence" is a term covering acts of violence or abuse between couples, family, or household members. Domestic violence can refer to:
- Assault or threats of injury.
- Physical abuse or injury.
- Sexual assault or rape.
- Stalking.
- Harassment.
The law requires that domestic violence involve "household members," meaning that allegations of abuse must involve people in certain kinds of relationships. This includes:
- Immediate family members.
- Current or former spouses or sexual partners.
- A coparent.
- Extended family members.
- People who live together, such as roommates.
Domestic violence can lead to a PFA or Protection from Abuse order. While this is a civil and not a criminal order, it can nonetheless have extremely negative consequences for a person against whom a PFA order is sought. Further, a PFA order can lead to criminal charges if the alleged perpetrator is arrested or if they violate a PFA order.
Domestic Violence Can Undercut the Voluntariness of Prenuptial Agreement.
Pennsylvania law emphasizes that prenuptial agreements must be voluntary. Additionally, common law principles require that a prenuptial agreement, like any contract, must not result from coercion or duress. These two concepts—involuntary agreement and coercion—are closely tied together. If a relationship has a history of violence or threats of violence, it can raise questions about whether a premarital agreement was voluntary or a product of coercion.
It is critical to remember that a court finding an agreement to be involuntary or the result of duress or coercion means that the entire agreement is invalid. The court will throw it out.
False Abuse Accusations
This begs the question: can a party claim domestic violence or fear of violence falsely to invalidate a prenuptial agreement? Of course. If you face false accusations of domestic violence or abuse, contact the LLF Law Firm immediately. If, on the other hand, you signed a prenuptial agreement because you feared your future spouse, you also need to contact the LLF Law Firm as soon as possible.
If a divorce includes both a prenuptial agreement and accusations of abuse or threats of abuse, the question of the voluntariness of the premarital agreement will arise. Whether you are seeking to enforce or invalidate an agreement, it is vital that you have counsel. Remember that allegations of abuse can significantly affect child custody as well as the enforceability of a prenuptial agreement. These allegations might lead to a Protection from Abuse (PFA) order. The LLF Law Firm represents people accused of domestic violence during contentious divorces. Whatever the circumstances, call the LLF Law Firm—we can handle all aspects of this type of case, including seeking or defending against a PFA order.
Postnuptial Agreements
It is critical to remember that the parties to a marriage must constantly revisit their financial planning, including their prenuptial agreement. Couples may execute updates or modifications to a prenuptial agreement or choose to execute a postnuptial agreement. This is especially true if the marriage involves a high net worth or a shared business. The parties should be willing to discuss and renegotiate terms.
How the LLF Law Firm Can Help
The LLF Law Firm has over a decade of experience representing Pennsylvanians in divorce, custody, and financial planning. The LLF Law Firm Family Law Team understands what can go wrong in divorce and custody cases, and they can help couples avoid these pitfalls through communication and planning. A prenuptial agreement is central to sound financial planning. Let the attorneys at the LLF Law Firm help you get peace of mind and trust. If you have an existing prenuptial agreement but believe the agreement may be unenforceable or you are facing domestic violence, call the LLF Law Firm Family Law Team today at 888.535.3686, or use our contact form to set up a confidential consultation.
