Most people are probably familiar with prenuptial agreements. These agreements are named as such because they occur previous to the couples “nuptials” or marriage. As opposed to a prenuptial agreement, one can probably deduce that a post-nuptial agreement would occur after the couple has married and is husband and wife. While many people, especially high-asset couples, routinely consider whether drafting a prenuptial agreement is appropriate for their situation, few consider a post nuptial agreement to address changed circumstances and other concerns. In fact, many potential clients seeking guidance regarding a post-wedding or mid-marriage contract are surprised to learn that a post-nuptial agreement is an option.
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Why Do Married Couples Consider Post-nuptial Agreements?
For some couples, a marriage can last and endure for a half-century or more. However even for marriages that have “merely” existed for several years or a decade, significant changes in the marital circumstances and situation can occur. For instance, the stresses and responsibility of raising children can result in disagreement between the couple. They may seek to define certain responsibilities. Post-nuptial agreements can also address the division of labor in a marriage. These agreements can also set forth consequences for unwanted behaviors that introduce disagreement and strife into the marriage. Essentially, a post-nuptial agreement is a contract and can assess nearly any aspect of the relationship between the parties.
However, more often than not, there is at least some financial aspect that motivates one or both spouses to clarify their arrangement through a post marital agreement. One spouse may unexpectedly choose to give up his or her career to raise children. One partner may have become extremely successful and may wish to set forth ground rules for the division of assets should his spouse file for divorce. The agreement may go so far as to consider spousal support and alimony should the marriage end in divorce.
When Are Post-nuptial Agreements Valid in PA?
In Pennsylvania, post-nuptial and post-marital agreements are treated as a contract. As such, they are generally enforceable in the state. Generally speaking, most states require the parties to make a “full and fair” disclosure of his or her assets and liabilities. Some states also include a fairness component to guide the analysis of whether a post-marital agreement is enforceable. However, Pennsylvania is a state that has no fairness criteria when it comes to postnuptial agreements and solely requires a full and fair disclosure. Essentially this means that a court can enforce even an agreement that favors one party and disfavors another. Therefore, each member of a couple should seek independent counsel regarding a proposed post marital agreement.
However, while post-nuptial agreements are highly useful, there are additional potential legal pitfalls. Consider the fact that even the requirement for the parties to set forth a full and fair disclosure can be waived by either or both parties. In the 2013 Pennsylvania Superior Court decision of Lugg v. Lugg, the court held that a party may waive this disclosure requirement resulting in an enforceable agreement when the waiver is voluntary and in writing.
Another risk presented by post-nuptial agreements includes the fact that, under Pennsylvania law, married individuals have certain rights and obligations. For instance, there are well-defined rights regarding the equitable division of property following a dissolution of marriage. However, when a party signs a contract, he or she can conceivably give up rights that he or she would otherwise be entitled to receive. Consider further that under Pennsylvania law, a spouse cannot disinherit the other. However, effectively the same result can be achieved with a post marital agreement.
Work with Experienced Divorce Lawyers in Philadelphia
As one can probably surmise, post-nuptial agreements are particularly utilitarian contracts that can be utilized to address nearly all marital concerns. However, these agreements also present the possibility for legal error that extinguishes certain statutory rights when executed by a layperson. Therefore, in most cases, a post marital contract is best handled by a meticulous and strategic Philadelphia divorce lawyer who will consider the practical effect of all language contained within the document.