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When contemplating marriage, there is nothing more romantic than a prenuptial agreement, right? While discussing a prenup with your potential spouse may not be the most comfortable topic of conversation, it certainly is an important one.
Both parties to a prenuptial agreement should be exceedingly careful when entering into an agreement. The language that is crafted at the time of execution will be specifically enforced if a divorce is filed. Accordingly, all the heavy lifting with regard to the agreement is done while the couple is likely quite happy and not anticipating any of the problems that may arise.
It is worthy to note that terms of a prenup are not required to be fair. The Courts will allow parties to enter into bad deals. In fact, Courts have found that parties are bound by the agreement, even if it was not read or fully understood. The duty to read the agreement or seek legal counsel before signing is the responsibility of each party. If a party blindly enters into a prenuptial agreement with the romantic notation that their prospective spouse would have their best interests at heart, they will be bound by that agreement unless one of the limited exceptions applies.
While Pennsylvania law does not focus on what must be included in a prenuptial agreement, it does set out what you must show if you want the Court to declare the agreement is not enforceable. The Court will always start from the assumption that the prenuptial agreement is valid and enforceable. As such, the spouse who is unhappy with the terms and wishes to discard the agreement has the burden to show, by clear and convincing evidence, that the agreement should not be enforceable.
If you wish to argue that a prenup should not be enforced, you have limited options. You must show either that the agreement was not entered into voluntarily or that one party did not provide “fair and reasonable disclosure of property or financial obligations.” For example, if a party is unaware of an offshore bank account because that fact was not disclosed when drafting the agreement, you may argue that it should not be enforced due to fraud or misrepresentation.
A prenuptial agreement is usually only tested if a couple is considering divorce. Until that time, it is likely that neither party has revisited the document. There could easily be decades between when the agreement was crafted, and when it will be enforced.
Couples who effectively utilize prenuptial agreements to manage their marital finances and assets can have peace of mind, putting their cards on the table prior to a legal union.
While some people see prenups as planning for divorce, the process can be viewed as smart risk management, considering statistics about U.S. divorce rates. If couples can ignore stigmas surrounding a prenup, they can protect their past and future and possibly eliminate ugly battles over assets.
Our family law team is here to help you understand the short- and long-term implications of a prenuptial agreement.
Attorney Kellie Rahl-Heffner is a family law attorney, providing legal guidance in the areas of divorce, prenuptial and postnuptial agreements, child custody, alimony, and more.