This page provides educational context about premarital agreements in Pennsylvania family law, including how they are treated in divorce proceedings.
Terminology Note: In Pennsylvania, the term for an agreement entered into by prospective spouses before marriage is no longer formally referred to as a "pre-nuptial agreement" or "prenup." The legally current term is premarital agreement. Additionally, the firm can also draft and review cohabitation agreements and postnuptial (post-marital) agreements for parties who did not execute an agreement prior to marriage.
How Premarital Agreements Work in Pennsylvania
A premarital agreement is a contract entered into before marriage addressing how assets, debts, and financial matters will be handled in the event of death or divorce. In Pennsylvania, premarital agreements are governed by 23 Pa.C.S. § 3106 and the standards developed by Pennsylvania appellate courts. They are generally enforceable if they meet certain requirements.
Requirements for Enforceability
To be enforceable, a prenuptial agreement must generally be: in writing and signed by both parties; entered into voluntarily, without duress or coercion; supported by full and fair financial disclosure; and not unconscionable at the time of execution. Courts scrutinize agreements where one party had no legal representation, where disclosure was incomplete, or where circumstances of signing suggest coercion.
What a Prenuptial Agreement Can Address
A prenuptial agreement may address the characterization of assets brought into the marriage as non-marital; how property acquired during the marriage will be treated; whether certain assets will be excluded from equitable distribution; limitations on spousal support or alimony; and estate planning matters.
What a Prenuptial Agreement Cannot Do
A prenuptial agreement cannot waive child support — courts will not enforce provisions that purport to limit a child's right to support. Agreements that attempt to incentivize divorce, that are grossly unfair at the time enforcement is sought, or that were entered under circumstances suggesting coercion may be challenged successfully.
An existing prenuptial agreement is one of the first things analyzed at the outset of a divorce case. Its enforceability — and what it actually provides — must be understood before any other strategy is built.
When a Premarital Agreement Makes Sense
Regardless of current net worth, there are many circumstances where a premarital agreement provides meaningful protection. Common scenarios where clients seek one include:
- One party owns a business: protecting it from equitable distribution if the marriage ends
- One party is bringing significant debt (student loans, business debt) into the marriage
- One or both parties stand to receive an inheritance or own property they wish to protect
- One or both parties have children from a prior relationship and wish to protect specific assets for them
- Significant savings, investments, real estate, or collections that one party wishes to retain as separate property
- One party simply prefers not to have their financial future subject to a support formula or equitable distribution process if the marriage ends
A premarital agreement requires full and fair disclosure of assets by both parties. Your future spouse can — and should — bring the proposed agreement to an independent attorney for review before signing. A premarital agreement reviewed by independent counsel for both parties is substantially more likely to be upheld by a court than one where only one party had legal advice.
It is always best to have a plan. Often the best-laid plans change. A premarital agreement is not an expression of distrust — it is an expression of clarity about how both parties want to approach the financial dimensions of the marriage.
When a Prenuptial Agreement Is Challenged
Prenuptial agreements are frequently challenged in divorce proceedings. Common grounds include: inadequate financial disclosure at the time of execution; signing under duress or without adequate time to review; lack of independent legal representation; and changed circumstances that make enforcement unconscionable. Whether a challenge is likely to succeed is a highly fact-specific analysis that requires careful attention to the circumstances of execution.