You are not getting married with the intention of getting divorced. But almost half of marriages end in divorce. There are many things you can do to keep a marriage strong. But there is only thing you can do to protect yourself in case of divorce in Pennsylvania: get a prenuptial agreement.
What is a prenuptial agreement?
A prenuptial agreement is a contract between you and your future spouse that states how you will handle the economics of a divorce. If you don't get divorced, the prenup will simply collect dust somewhere.
As a contract, the parties must sign the prenup but it is not filed with the court. A prenup can be entirely customized to the parties.
A prenup can last indefinitely or expire at a certain date or certain event. It can cover alimony, equitable distribution (division of assets and debts), counsel fees and much more. Or it can concentrate on only a few items (for example a family business).
Who needs a prenuptial agreement?
Most everybody can benefit from less litigation and lower counsel fees. But you would be especially wise to have a prenup if:
1. You have a family or start-up business that you wish to keep out of any divorce;
2. You have children from another relationship that you wish to protect;
3. You have significant non-marital assets or debts (without a prenup, the appreciation on "non-marital" assets is itself a marital asset);
4. You are not entirely certain that your spouse is entering into the marriage for the right reasons (often just agreeing to a prenup is a good sign). ;
5. You expect to have a complex or valuable marital estate; or
6. You have a family farm or mineral rights.
What does a prenuptial agreement do?
A prenuptial agreement resolves a number of issues without need for further effort. Some common examples: (a) your spouse will receive no alimony or ___ alimony; (b) your stake in the family business is not marital; (c) the appreciation on your assets will not be marital; (d) the family farm and its appreciation are not marital; (e) marital assets will be divided on a ___% / ___% basis; and (f) each party will pay for their own counsel fees.
However, the list of items that could be covered is nearly limitless and a good attorney will craft an agreement that specifically addresses your concerns and those of your spouse.
What does a prenuptial agreement not do?
A prenuptial agreement cannot determine custody. Custody is always based on the best interests of the child. A prenup cannot create an enforceable child support figure. A prenuptial agreement cannot require anything illegal or against public policy. A prenup cannot create jurisdiction where none otherwise exists.
What makes a prenuptial agreement enforceable?
A prenup in Pennsylvania is governed by the laws of contract. Thus both parties must review, agree upon and sign the prenuptial agreement. The prenup must be in writing and must contain enforceable elements. Most importantly, the parties must provide disclosure of their economic circumstances. Court are inclined to a enforce contract between two adults so long as the parties were informed with full disclosure of economic elements. This is one of the remaining areas of law where inserting "magic words" such as full disclosure,
waiver of discovery etc. are important. It is often good practice to attach financial exhibits to the prenup, though this is not required.
But a prenuptial agreement is not romantic!
Considering the prospect of divorce is not necessarily romantic. But agreeing upon a scenario that will protect both you and your future spouse from unnecessary litigation and expense is not anti-romantic. And contemplating death is not romantic but we can all agree on the necessity of a will and life insurance. A good prenuptial agreement is a piece of insurance that protects both spouses and that is hopefully never needed.
We have never had a client that regretted getting a prenuptial agreement. We have plenty of clients who wish that they had done so.