Prenuptial and Postnuptial Agreements

Both prenuptial and postnuptial agreements are valid in Pennsylvania.  Prenuptial or premarital agreements (oftentimes referred to as “prenups”) have become more commonplace in recent years, and offer couples who are getting married the security of an agreement regarding such topics as equitable distribution of marital property, support, alimony, and/or counsel fees in the case of a separation and divorce.  A prenuptial agreement is established before marriage and would control in the event of a separation and divorce, while a postnuptial agreement is established during the marriage and is utilized if the parties get separated and divorced thereafter. 

Prenuptial and postnuptial agreements both require full disclosure of any and all income, assets, and debts of both parties at the time they are entered into.  The requirement of full disclosure in the context of prenuptial agreements is more stringent than in an ordinary contract because of the special relationship of the parties, as they are about to be married. 

Normal contract principles apply to both prenuptial and postnuptial agreements, meaning that the presence of fraud, coercion, or duress by either party may constitute a basis for invalidating the agreement.  Fraud or misrepresentation can be shown by failure to make a full and fair disclosure of a spouse’s financial worth.  Additionally, a prenuptial agreement may be invalidated if it can be proven that one of the parties coerced the other into signing the agreement, or the party did not sign voluntarily.  Duress is that degree of restraint or danger, either actually inflicted or threatened and impending, that is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness.  If there is no threat of actual bodily harm, there cannot be duress where the contracting party is free to consult with an attorney.  For example, a threat to call off a wedding unless the other party executes a prenuptial agreement does not constitute duress sufficient to avoid the agreement.  It should be noted that fairness is not a consideration the Court will consider when a prenuptial agreement or postnuptial agreement is challenged. 

If you are exploring these options, an attorney at MM&D can assist you in drafting a prenuptial or postnuptial agreement.  An attorney’s advice and input can be invaluable as you consider creating a prenuptial agreement that will be beneficial for both you and your future spouse.  Statistics have shown an increasing number of marriages now end in divorce.  With the divorce rate being so high, it is wise to invest time into the planning of your long-term financial future.  In the event of a divorce, your spouse may be entitled to a percentage of your assets and personal property, which may include your real estate, investments, and/or retirement income.  In order to protect yourself and avoid a devastating loss, consider entering into a prenuptial or postnuptial agreement. 

Musi, Malone & Daubenberger will help you create an agreement that fully addresses all of your concerns.  While we would not draft a prenuptial or postnuptial agreement with the intention that your marriage will end, an agreement may act as a good insurance policy in the unfortunate event that the marriage does dissolve.