A prenuptial agreement, or “prenup”, is a contract or agreement between prospective spouses made in contemplation and advance of marriage. A discussion on the various reasons that a person may wish to enter a prenup before their wedding day can be found in Part 1 of this series. This second part of the series will focus on after you have decided to pursue a prenup, what specific terms and provisions to consider including in your agreement.
“Premarital” assets are any assets that have been acquired before the marriage. This can be any type of property, such as savings, checking and brokerage accounts, pensions and retirement funds earned until the date of marriage, a car, jewelry or a home etc. Parties should each prepare an exhaustive list of all assets, and debts, owned right before the date of marriage, and include recent values and dates of said values. A prenup will require fair and full disclosure be given by both parties and often include said list as part of the agreement. Then consider including a provision of how you want to handle said premarital assets and debts in the event of divorce or separation. Will they remain separate property and stay with the spouse who acquired it? Will it become marital property and be divided between the parties?
A prenup may include language that defines which property is marital property and which property is separate property. Marital property typically includes what is acquired from the date of marriage through the date of separation, as well as any increase in value of the premarital property during the said period. Often, premarital assets, like those described above, will be considered separate property or non-marital property. However, a prenup can alter the traditional and statutory definitions of property and parties can agree in advance what will be marital versus separate.
While it is helpful that a prenuptial agreement clearly lays out the definitions of marital and separate property, it is equally important that a prenup notes what type of property will be included under each category and then how that property will be addressed or distributed by the Court. Separate property is not a part of the marital estate and will not be divided by the Court. Marital property, on the other hand, can be divided in numerous ways, for example, equally (50/50) or any other variation in percentage (i.e, 60/40, 55/45, etc). Some parties use a prenup to pre-determine the percentage split of marital property. If this issue is not decided by a prenup, then parties can exert significant fees arguing this matter before the Court. Additionally, parties may choose to specifically state how a piece of property will be distributed differently in the event of separation/divorce. For example, the parties may include language that all marital property will be divided equally, but any proceeds from the sale of the marital residence only will be divided 60/40 in one spouse’s favor.
Some prenups include language that lays out the division of property in the event of one party’s death. The outcomes may vary depending on whether the parties were together at the time of death or separated, or the parties may choose the outcome to be the same. Moreover, these types of provisions in prenups can be used to alter distribution per state laws or as a placeholder until a more comprehensive Last Will and Testament is executed.
In the event of divorce, one party may be entitled to alimony or spousal support to be paid by the other party. This can be a costly issue to litigate. Parties often utilize prenups to agree to waive support or to place limitations on the amount, terms, and duration of support. Further, parties can make agreements about spousal support or alimony different than what the state would allow under Pennsylvania law.
One last consideration is that provisions in prenups can help settle issues in the event that the parties separate and enter the divorce process in Court. Parties can limit whether a party pursues a fault or no-fault divorce against the other, who will file and/or pay certain filing fees, what court has jurisdiction (if multiple do), and limit the opportunity for either party to delay the litigation process.
Prenuptial agreements can truly be customized and designed to fit each individual or couple’s needs. The attorneys at Obermayer are experienced in discussing and preparing these agreements, set up a consultation today to discuss the future of your family.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
Amanda concentrates her practice in all aspects of family law including divorce, adoption, child and spousal support, custody, separation and domestic abuse in the greater Doylestown, PA area. Amanda advises people during...
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