So, you’re getting hitched in the historic Commonwealth of Pennsylvania? Let’s get to work on your prenup and make it last as long as the Liberty Bell! We’ve compiled some information to streamline the process for you including prenup terminology and links to the Pennsylvania Domestic Relations Laws (for all of the fine print).
Marriage in the Commonwealth of Pennsylvania
In the Commonwealth of Pennsylvania, the Pennsylvania Domestic Relations code contains the laws which govern marital rights.
Commonwealth of Pennsylvania Prenuptial Agreements
You may know them as “prenups”, but Pennsylvania officially refers to prenups as “premarital agreements” (but they mean the same thing!). Per Pennsylvania law, “premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” Here is the fine print from the PA statute:
- 3106. Premarital agreements.
(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; or
(2) the party, before execution of the agreement:
(i) was not provided a fair and 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; and
(iii) did not have an adequate knowledge of the property or financial obligations of the other party.
What to include in a Pennsylvania Prenup?
Just a few things to keep in mind when creating your Pennsylvania prenup:
- Put it in writing!
- The terms and provisions must be lawful
- You and your fiancé both need to sign – and, we recommend initialing the bottom of each page!
- You must voluntarily sign the agreement (this means you can’t sign under duress, intimidation, deceit, etc.)
- Notarize your signatures! While not a requirement in every state, we like to cross all the T’s and dot all the I’s.
- Include a financial disclosure (this is what your Schedule A or B financial schedule is for!)
Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990)
In this case, a 39 year old neurosurgeon married a 23 year old unemployed nurse. Needless to say, they had a pretty large income disparity between them. In their premarital agreement, wife agreed to a $25,000 cap on potential alimony. However, she wasn’t too pleased with that arrangement when the couple divorced. When she tried to challenge the fairness of the agreement in court, the court refused to even consider whether the agreement was or was not fair. Absent fraud, misrepresentation, duress, parties are bound by the agreements that they enter into and the unreasonableness of the agreement doesn’t necessarily matter.
Moral of the story: You are bound by the (lawful) agreements that you enter into, even if they seem unfair.
Hamilton v. Hamilton, 404 Pa.Super. 533, 591 A.2d 720 (1991)
This couple entered into a prenuptial agreement with the assistance of two separate attorneys. In the agreement, wife waived her right to alimony. When they split up, wife challenged the agreement arguing that she signed under duress. Here’s some context: At the time of the wedding, wife was 18, unemployed, and three months pregnant. Husband also threatened to cancel the wedding if she didn’t sign. Yikes. However, the court disagreed with her duress arguments. Wife was represented by her own attorney at the time and signed voluntarily. “Where a party has been free to consult counsel before signing an agreement, the courts have uniformly rejected duress as a defense to the agreement.”
Moral of the story: Invalidating a prenuptial agreement is tough.
- Property that is not marital: Non-Marital Property
- Property that is of the marriage: Marital Property
- Support: Alimony
In Pennsylvania, this is the official term for jointly owned property.
The Pennsylvania statute defines Marital Property as:
All property acquired by either party during the marriage and the increase in value of any nonmarital property acquired pursuant to paragraphs (1) and (3) as measured and determined under subsection (a.1). However, marital property does not include:
(1) Property acquired prior to marriage or property acquired in exchange for property acquired prior to the marriage.
(2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.
(3) Property acquired by gift, except between spouses, bequest, devise or descent or property acquired in exchange for such property.
(4) Property acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets.
(5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the date of final separation.
(6) Veterans’ benefits exempt from attachment, levy or seizure pursuant to the act of September 2, 1958 (Public Law 85-857, 72 Stat. 1229), as amended, except for those benefits received by a veteran where the veteran has waived a portion of his military retirement pay in order to receive veterans’ compensation.
(7) Property to the extent to which the property has been mortgaged or otherwise encumbered in good faith for value prior to the date of final separation.
(8) Any payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.
Important note: don’t forget to consider the increase in value of non-marital property which occurs during the marriage. Without specifying in a premarital agreement, it may be considered marital property upon divorce.
This is the official term for property which is independently owned
Under Pennsylvania law, “Non-Marital” property is defined as property that was owned prior to the marriage. It also includes property that was received as a gift during the marriage. This also includes inheritance. It can be tricky to differentiate between marital and non-marital property. That’s where your prenup comes in handy! Your prenup allows you to clarify exactly what you want to be considered as non-marital property.
Don’t forget about “Non-marital” assets! These also fall within the category of “separate property”. They can include the following:
- Assets obtained before the marriage
- Assets obtained by inheritance or gift (at any time)
- Assets obtained after the separation date
Porreco v. Porreco, 571 Pa. 61, 811 A.2d 566 (2002)
Husband presented wife with a beautiful diamond ring upon their engagement. Or at least, so the wife thought. Turns out, unbeknownst to wife, the ring was fake. Despite this, husband listed the ring as one of the wife’s assets in the financial disclosure in their prenup. He valued it at $20,000 (this made up about HALF of wife’s assets). Let’s just say wife wasn’t too please when she discovered this after the couple separated. Naturally, wife challenged husband’s financial disclosure during the divorce. The only problem was, it was her financial disclosure that included the ring. What the husband did may have been wrong, but the court took the position that the wife could and should have investigated prior to signing. She had the ring in her possession and could have had it appraised before entering into the agreement.
Moral of the story: do your homework!
Alimony (also called spousal support in other states) is monetary support that one spouse provides to the other spouse during and/or after divorce.
Here are some factors that courts consider, according to the PA statute:
In determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony, the court shall consider all relevant factors, including:
(1) The relative earnings and earning capacities of the parties.
(2) The ages and the physical, mental and emotional conditions of the parties.
(3) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or increased earning power of the other party.
(7) The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child.
(8) The standard of living of the parties established during the marriage.
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony, except that the court shall consider the abuse of one party by the other party. As used in this paragraph, “abuse” shall have the meaning given to it under section 6102 (relating to definitions).
(15) The Federal, State and local tax ramifications of the alimony award.
(16) Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party’s reasonable needs.
(17) Whether the party seeking alimony is incapable of self-support through appropriate employment.
Till death do us part
Estate of Renwick v. Renwick, 2021 PA Super 50, 248 A.3d 577 (2021)
In this couple’s prenuptial agreement, husband promised to fund an IRA for wife. However, he never followed through on that promise. Based on his failure to do so, the court declared that the prenuptial agreement was void. Wife could not be bound to something she did not agree (i.e. an un-funded IRA). Therefore, upon the death of husband, she was entitled to one-third of his estate and was not bound by the limitations in the prenuptial agreement.
Moral of the story: Make sure you follow through with the promises you make in your agreement.
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