Prenuptial Agreement

What to be aware of as you consider a Prenuptial Agreement:

  • Full Disclosure
  • Tax Traps
  • Pension Pitfalls
  • Estate Planning
  • Religious Implications
  • Psychological Issues

As noted in Premarital Agreements in Pennsylvania 5th Edition:

Marriage, in a sense, is equivalent to a business partnership, with each of the partners playing a varied role. One may be the economic provider, while the other may be a stay at home parent or spouse with intervening roles in the activities of the other. Since a marriage partnership is also a business partnership, the need for a premarital agreement often becomes necessary. The terms premarital, antenuptial, and prenuptial are used interchangeably in the Commonwealth of Pennsylvania. Pennsylvania Divorce Code was amended in 2005 to include Title 23 Pa. C.S. § 3106 to specifically address the issue of the challenge to set aside premarital agreements. The general rule is as follows:

  • (a) General Rule – The burden of proof to set aside a premarital agreement shall be upon the party alleging the agreement to be unenforceable. A premarital agreement shall not be enforceable if the party seeking to set aside the agreement proves, by clear and convincing evidence, that:
    • (1) the party did not execute the agreement voluntarily.
    • (2) the party, before execution of the agreement:
      • (i) was not provided a fair reasonable disclosure of the property or financial obligations of the other party;
      • (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;
      • (iii) did not have an adequate knowledge of the property or financial obligations of the other party.
  • (b) Definition – As used in this section, the term “premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.

A prenuptial agreement to be considered valid in Pennsylvania must include a complete full and fair disclosure of all assets and liabilities of both parties. The two major issues to be addressed in a prenuptial agreement are what happens in the event of a party’s death or the dissolution of the marriage.