Prenuptial Agreement

by Katherine V. Coverdale on Dec. 13, 2011

Divorce & Family Law 

Summary: While preparing for your upcoming wedding, the last thing you want to think about is getting divorced. Here are 5 things to consider when drafting a prenuptial agreement.

While preparing for your upcoming wedding, the last thing you want to think about is getting divorced.  Yet signing a prenuptial agreement may be one of the most pragmatic things you do, even if you never have to use it.  When you are about to get married, you think of your partner as your best friend, so you are much more likely to be amicable and fair than when you are about to get divorced, when you probably, albeit not always, think of your partner as your worst enemy.  That being said, here are 5 things to consider when drafting a prenuptial agreement:

1. Separate Property

The property you own prior to marriage is considered your separate property.  However, actions you take during the marriage can change the nature of that property from separate property to marital property without you even knowing.  For example, Wife has an inheritance she received from her mother.  After marriage, Wife transfers her inheritance monies from a separate bank account into a joint bank account, which Husband and Wife then use to pay for various marital expenses.  Upon divorce, Husband may argue that Wife’s inheritance monies are now marital, given the comingling of funds and the use of said funds to pay for marital expenses.  Language in a prenuptial agreement can prevent such an issue from occurring.  Both parties can agree that joint use of separate property will not convert the nature of said property into marital property and that separate property will not convert into marital property absent an explicit written agreement to that effect.  Both parties can still be free to make gifts of separate property to each other, but that is a choice that they can both make on an item-by-item, case-by-case basis.

2. Marital Property

Almost all couples will acquire property during the marriage.  Absent an agreement to the contrary, the law of the state in which the parties are divorcing, whether it be an equitable distribution state, like Pennsylvania, or a community property state, like California, will govern the disposition of such marital property.  In Pennsylvania, equitable distribution does not necessarily result in a 50/50 split of marital property – the actual division depends on various factors, including, but not limited to, the income disparity of the parties and the length of the marriage.  Therefore, if your intent is that all marital property be divided equally in the event of a divorce, you will need an agreement that states just that.  Otherwise, there is no guarantee that the division pursuant to the law will lead to such a result.

3. Spousal Support/Alimony Pendente Lite/Alimony

Upon separation and prior to divorce, the income inferior spouse may file to obtain either spousal support or alimony pendente lite from the income superior spouse, with the particular form of financial support depending on the particular circumstances of the case.  Thereafter, upon divorce, the income inferior spouse may be entitled to receive alimony from the income superior spouse.  Depending on the length of the marriage and the facts of the case, the amount and duration of spousal support, alimony pendente lite or alimony the income inferior spouse receives and the income superior spouse has to pay may be substantial and one of the most substantial financial consequences of the separation and divorce. 

Accordingly, the provision in the prenuptial agreement that deals with spousal support, alimony pendente lite and alimony is crucial for both parties.  The income inferior spouse should be sure to analyze the financial implications of giving up or limiting his/her rights to such support.  The income superior spouse should consider ways of limiting his/her financial exposure with respect to such support, whether it be (1) by providing the income inferior spouse with a certain amount of support for a certain amount of time regardless of the duration of the marriage and the incomes of the parties upon separation/divorce, or (2) by providing the income inferior spouse with a different amount of support and a different duration based on the duration of the marriage.  Both spouses may choose to waive any and all support rights altogether.  The best option is different in every case and ought to be considered thoroughly. 

4. Expenses During the Marriage

While many people choose to pool their financial resources and spend them jointly during the marriage, others may want to outline for which expenses each spouse will be responsible, especially when it comes to substantial expenses such as those related to the maintenance of a residence.  A prenuptial agreement can set forth the proportions in which the parties will be responsible and allow parties who wish to do so to keep their finances separate.

5. Other Rights Under the Divorce Code

In Pennsylvania, for example, the Divorce Code provides additional rights beyond the basics of property division and support.  For example, a spouse may be entitled to receive monies for counsel fees and expenses from the other spouse, or a spouse may be awarded exclusive possession of the marital residence pending the finalization of the divorce proceedings.  A prenuptial agreement may limit or take away the ability of either spouse to pursue the receipt of such benefits.

A prenuptial agreement may not be the most romantic prelude to an upcoming wedding, but it may save divorcing spouses from a contentious fight and allow them to part ways as amicably, fairly and inexpensively as possible.  Of course the hope is that you never have to use it, but you will be happy to have it in the unfortunate event you do.


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