Beware and be aware before signing a Pennsylvania premarital agreement

Pennsylvania treats premarital agreements largely like regular contracts.

Most people begin marriage focused on the relationship and the new family, whether or not children are contemplated, and whether the union starts in young adulthood or in the golden years. Given the personal nature of marriage, it is easy to put economic matters on the back burner.

But the truth is that when a marriage ends, untangling financial affairs and property rights in divorce can be staggeringly difficult, especially at an emotionally charged time. Also, a divorcing spouse may not be happy to learn what state law says about how property should be divided or whether alimony will be ordered.

One tool that can help is a premarital agreement: a valid, enforceable legal contract signed by prospective spouses before their wedding that takes effect upon the marriage. (Pennsylvania law uses the term premarital agreement, but they are also called prenuptial or antenuptial agreements.)

While a premarital agreement can deal with a variety of family matters, they are most often used to predetermine property division and alimony issues in divorce. For example:

  • A spouse may want to ensure that children from a previous relationship or members of his or her family of origin are provided for or are guaranteed certain property
  • A spouse may want ownership of a family business to remain with the family of origin
  • A spouse may want to restrict access to property or money if the spouse-to-be has a financial issue like a gambling, shopping or other expensive addiction; or could be unduly influenced by another person to make unwise financial decisions
  • A spouse may want to protect his or her assets from satisfying debt incurred by the other
  • A spouse may wish the other to waive his or her right to alimony so that the money can instead eventually go to children through inheritance
  • And more

Historically, courts sometimes set aside premarital agreements when they were unreasonable; left one spouse destitute; were made without full disclosure of a spouse's property and debt; were signed under duress or without mental capacity; were the product of fraud or misrepresentation; and so on. Usually the wronged party to a bad prenuptial agreement was the wife because of the economic and social disadvantages of women and it was seen as appropriate that a court should step in and protect her.

Many states still have legal safeguards against gross unfairness, allowing courts to throw out prenuptial agreements that, for example, are unconscionable (shockingly unfair); would make one spouse eligible for public benefits based on low income or assets; did not allow time before the wedding for both spouses to consult their own lawyers and more, depending on the particular state's laws.

Pennsylvania, however, is seen nationally as a unique state that upholds prenuptial agreements under circumstances that might not hold up elsewhere. Pennsylvania law views premarital agreements largely like business contracts between equal parties. Pennsylvania takes the view that two contracting parties can agree to whatever they want as long as each party fully discloses his or her financial situation, including debts, and there is no fraud, misrepresentation or duress. Usual general contractual safeguards are seen as enough protection for those entering prenups.

Interestingly, Pennsylvania's leading case on the subject bases this approach on the equality of the sexes - that women should not need special protection because they have equal ability to seek legal advice and decide for themselves what are good bargains.

Any Pennsylvanian contemplating a premarital agreement should confer with an experienced family lawyer to thoroughly understand these important issues before proceeding.

Keywords: Pennsylvania, premarital agreement, prenuptial, antenuptial, property division, divorce, marriage, contract, alimony, disclosure, debt, fraud, duress