Prenuptial Agreements, also known as premarital agreements, are agreements entered into between two prospective spouses, who contemplate marriage, and wish for the agreement to become effective upon their marriage. The purpose of the agreement, which is considered a contract between the two prospective spouses, is to set out in writing exactly how the couple will divide their marital estate in the event of a divorce, or the death of one party. Although it may not be considered very romantic to discuss and enter into a prenuptial agreement at the same time you are picking out your wedding dress, flowers, and reception venue, in the event of divorce or death, it will save the spouses from experiencing the fear and insecurity of not knowing what assets will be received, when the assets will be received, and how much, if any, support will be issued.
In general, prenuptial agreements are not intended for young people who are marrying for the first time and own insignificant or nominal assets, unless said individuals anticipate the acquisition of a large inheritance or gift after the marriage. This is not true of second or third marriages, where one individual has acquired substantial assets from a prior relationship, or when children from a prior relationship are involved. In these circumstances, a prenuptial agreement is almost always a good choice.
In order for a prenuptial agreement to be valid, it must have been executed prior to the marriage ceremony, even if the signing occurs a few moments before the marriage ceremony, be entered into voluntarily by the two prospective spouses, and exhibit proof that each prospective spouse was provided with a “fair and reasonable” disclosure of the property and financial obligations of the other party. If there was no “fair and reasonable” disclosure, then in order for the prenuptial agreement to be valid, there must be written proof that the prospective spouse elected to waive the “fair and reasonable” disclosure of the property and financial obligations of the other party.
Raising the issue that a party failed to secure his or her own legal counsel prior to signing the agreement will not invalidate a prenuptial agreement.
Cara A. Boyanowski concentrates her practice in the field of domestic law and wills and estates. As a domestic law practitioner, she represents clients in simple and complex divorce, support, custody, alimony, step-parent adoptions, name change and same-sex divorce and custody matters. She works out of Obermayer’s Harrisburg, PA office and can be reached at 717-234-5315 or at Cara.Boyanowski@obermayer.com.