Pennsylvania Post/Prenuptial Agreements
Helping to draft and contest prenups and post-nups for divorce
It’s not romantic to plan for a marriage to fail. Yet, the statistics show that many marriages do end in divorce. According to data from the US Census Bureau and Pew Research:
Nearly ½ of all Americans aged 18 or over were married in 2017 – down 8 percentage points from 1990.
The Baby Boomer generation (aged 60 and older) is divorcing at a much higher rate than other statistical groups.
There are many reasons spouses divorce including:
Lack of communication or trust
The development of different interests
The needs or independence of children
Lack of intimacy
What is a prenuptial agreement?
A prenuptial agreement (often shortened as “prenup”) is a contract that the soon-to-be-wed couple prepares and signs – before the marriage takes place. The agreement doesn’t mean that the partners think the marriage will fail. The prenup is essentially a way of avoiding financial disputes if the marriage ends in divorce.
If a marriage terminates, the spouses are entitled to:
An equitable division of their marital property. The division is based on what is considered equitable or fair. The division only applies to “marital property” which is generally any assets (or debts) acquired during the marriage. Marital property usually includes the home the spouses live in, bank accounts, vehicles, cars, and personal property. It also includes businesses, retirement benefits, and other assets.
Alimony depending on a variety of factors. Alimony in Pennsylvania is essentially a way of ensuring that the spouse who can’t earn a living or can’t earn nearly the same as the other spouse has some income. The income may be used to help the spouse receiving alimony acquire an education or job skills. In some cases, a spouse may be ordered to pay alimony indefinitely or for a specific number of years – such as when the spouses were married for decades and when it’s just too hard for the spouse receiving the payments to start over. Alimony can be ordered while the divorce is pending (alimony pendente lite) or after the divorce is final.
A prenuptial agreement essentially decides the equitable distribution of property issue ahead of time – so there’s no need to resolve or litigate equitable distribution. The prenuptial agreement also decides the alimony issue ahead of time.
What doesn’t a prenuptial agreement cover?
A prenup can’t decide child custody issues. The rights of the children to have two parents focused on their well-being simply can’t be bargained away before the spouses are even married. Generally, a prenuptial agreement also can’t determine the amount of child support that is paid. Even when spouses divorce, any child support order must be approved by the family law judge – to protect the interests of the child.
A prenup doesn’t cover assets or debts that aren’t covered in the prenuptial agreement. This is why it is critical that any spouse who desires a prenuptial agreement have an experienced family lawyer draft the agreement. Words matter. The general preference of the family courts is to strictly construe prenuptial agreements.
Common reasons for considering a prenuptial agreement?
Spouses who are young and just starting their careers generally don’t use a prenuptial agreement. Prenups are considered:
- When spouses are older – in part, because they may have retirement benefits that are vested or will vest soon.
- When one or both spouses has significant assets such as real estate, valuable personal property, or a business
- If one or both spouses have children from a prior marriage
- A spouse has an inheritance or expects one
- Other financial reasons
What are postnuptial agreements in Pennsylvania?
Postnuptial agreements are agreements that the spouses enter into after they marry but before they divorce. Postnuptial agreements generally cover the same issues (equitable distribution of marital property and alimony) that prenuptial agreements cover. They’re generally entered into for the same reasons that people enter into prenups – to protect their assets and avoid litigation how the assets will be divided.
A spouse who acquires valuable assets or has a successful business may ask the other spouse to sign a postnuptial agreement. A spouse may also ask for a prenuptial agreement if the other spouse develops financial problems such as a gambling habit, excessive bills, or has a substance abuse problem.
When are prenuptial and postnuptial agreements considered valid/invalid?
Prenuptial agreements and postnuptial agreements are normally considered valid provided a few basic conditions are met. For this reason, if you are asked to sign a prenup or postnup, you should have an experienced family lawyer review the documents – BEFORE – you sign them, not after you sign them. By the same reasoning, if you want to ensure that your spouse will have difficulty contesting the prenup or postnup, you should also have an experienced family lawyer explain your rights and prepare the contract.
Prenups and postnups can be ruled invalid in some cases:
- If the person who signed the agreement was a minor (less than 18 years old), the contract may be ruled invalid.
- Agreements can’t be entered into under duress. You can’t physically force or unduly pressure someone to sign a prenup or postnup.
- There wasn’t a full disclosure of your assets and debts. This is one of the main arguments for invalidating a prenuptial or postnuptial agreement. If you have a home, a bank account, a business, or other assets in your name – and you don’t disclose those assets to the person you want to sign the prenup or postnup – then the entire agreement may be invalid (not just the part you failed to disclose). The same idea holds for the disclosure of debts.
Speak with a skilled Central Pennsylvania divorce lawyer for prenup and postnup advice
At the Law Office of Jason R. Carpenter, our Central PA family lawyers are experienced at preparing prenuptial agreements and postnuptial agreements. We’re ready to contest agreements that are based on fraud, misrepresentations, or a failure to disclose. To schedule an appointment with an experienced family lawyer, call us at: (717) 537-0928 or complete our contact form.
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