When contemplating marriage, there is nothing more romantic than a prenuptial agreement right? Acknowledging that discussing a prenuptial agreement with your potential spouse may not be the most comfortable topic of conversions, it certainly is an important one.
Both parties to a prenuptial agreement should be exceedingly careful when entering into the agreement. The language that is crafted at the time of execution will be enforced explicitly 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.
A prenuptial agreement will only be 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 pre-nuptial agreement was crafted, and when it will be enforced.
23 Pa.C.S.A. §3106 is the Pennsylvania law that addresses pre-nuptial agreements. The law does not focus on what must be included in a pre-nuptial agreement but sets 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 pre-nuptial 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.
There are limited ways in which a spouse can argue that a pre-nuptial agreement is unenforceable.
(1) A spouse can argue that they did not execute the agreement voluntarily. This is very difficult to do. A pre-nuptial agreement will generally have a provision in it stating that both parties are entering into the agreement knowingly and voluntarily. On occasion, a spouse will argue that they signed the pre-nuptial agreement under duress, so the agreement was not voluntary. Duress in this situation is nearly impossible to prove. This is because in Pennsylvania, duress must generally include a threat of physical violence. (Think gun to your head.) A threat from one spouse to the other threatening to take custody of the couple’s children or not follow through with the wedding are not threats that rise to level of legal duress. If you are a competent adult, who can read the pre-nuptial agreement in the language it is drafted in and you agree to sign it, then you have voluntarily agreed to the terms as far as the Court is considered. This is true even if you did not read the document but chose to sign.
(2) The other way a spouse can argue a pre-nuptial agreement is not enforceable is to show that when the agreement was drafted and signed, there was not full and fair disclosure of assets between the parties. This is the conventional argument made by a spouse seeking to discredit a pre-nuptial agreement, and generally the more successful one. The idea behind a pre-nuptial agreement is that both parties have laid all of their cards on the table so to speak. Both parties agree to disclose all of their assets, so the final agreement is a fair distribution of the total assets. If a party is unaware of an offshore bank account because that fact was not disclosed when drafting the pre-nuptial agreement, you may argue the agreement should not be enforced due to fraud or misrepresentation. At that point, you could take the matter before the Court, have the pre-nuptial agreement invalided and negotiate a completely new agreement.
Of note is that the terms of a pre-nuptial agreement 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 on the parties. If a party blindly enters into a pre-nuptial agreement with the romantic notation that their prospective spouse would have their best interest at heart, they will be bound by that agreement unless one of the above-limited exceptions applies.
Attorney Kellie Rahl-Heffner of Gross McGinley LLP provides guidance to individuals in divorce matters, child custody, child support and protection from abuse cases. For more information, contact her at krahl-heffner@grossmcginley.com or 484-224-2802.
By: Attorney Kellie Rahl-Heffner of Gross McGinley LLP
