To Prenup or Not to Prenup

There are two common reasons clients cite as to why they don’t need a Prenuptial Agreement: 

  • “I don’t have a lot of money or assets; I don’t need to plan for divorce.” 
  • “I don’t want to plan for failure or make my intended think I don’t trust them.” 

Because of this, many couples avoid the discussion of a Prenuptial Agreement altogether. This is unfortunate because there are real benefits to utilizing a Prenup and talking about it early on in your relationship. It is important to understand the purpose and benefits before making a decision. Let’s discuss. 

First Off, What is a Prenuptial Agreement or “Prenup”?

A Prenuptial Agreement is a contract between two intended spouses, which predetermines property rights and financial obligations in the event of divorce and/or death. It can also address rights related to spousal support, alimony and more.   

Many believe these contracts are primarily implemented by wealthy persons. However, engaged persons at all income/asset levels are more commonly entering into Prenups regardless of net worth or income level. With the divorce rate being over 50% for first-time marriages, and over 65% for second-time marriages, pre-planning can reduce legal disputes and fees, as well as prevent lengthy adversarial court actions. Also, with blended families being more common, protecting assets both in the event of divorce and death just makes sense.    

What is the Purpose of a Prenup?

Without a Prenup, state law will determine property rights and one’s entitlement to spousal support, which may not be as equitable or fair as you may want. Additionally, the scope of the document can be as broad or as limited as the parties want; it can plan for divorce, death, or both. It can even define what assets are martial and what assets are not.  When working with your attorney, your Prenup can address only one asset, a few, or it could cover everything to ensure an equitable distribution of all assets and liabilities in the event of divorce. It can also protect family businesses or wealth from being considered as part of asset distribution.   

When Do I Need to Approach the Topic with My Fiancé?

The short answer: sooner rather than later. You do not want a Prenup to negatively overshadow a time-period which should be filled with excitement and anticipation.  Preparation for a wedding is stressful enough, without the added complexities of “oh, by the way, I want a Prenup!”  

The long answer: This is a not a last-minute item on your wedding checklist. Drafting of the document can take some time, depending upon the complexities of your assets and whether there is already joint agreement or whether some negation is necessary.  It is also highly recommended that both spouses retain an attorney so both parties interests are represented. When Prenups are signed so close in time to the wedding, or only one side is represented, there may be an appearance of duress or unfairness.  If you are going to spend the time and money to have a Prenup drafted, don’t rush the process, as it could risk the document’s enforceability.        

Is a Prenup Binding and Enforceable?

Yes.  In Pennsylvania, Prenuptial Agreements are presumptively valid.  They are contracts and are interpreted and enforced under contract principles.  If one party seeks to have the Prenup invalidated, it is that person’s burden to prove the agreement is invalid.   

Some of the ways a Prenup can be invalidated is if:  

  • (1) there was not full and fair disclosure of assets;  
  • (2) the agreement was induced by fraud;  
  • (3) a party was forced to sign under duress (threatening to call off the wedding is not duress); and/or  
  • (4) a party made a misrepresentation. 

In some jurisdictions, Prenuptial Agreements can be unenforceable if the agreement is unreasonably unfavorable to one spouse, over the other.  However, in Pennsylvania, so long as there was full and fair disclosure, the Court will not invalidate the agreement, even if it is unfair. 

What’s The Difference Between a Prenup and a Postnup?

The timing.  A Prenuptial Agreement is entered into before a marriage and a Postnuptial Agreement is created after the wedding.  In Pennsylvania, the same legal rules apply to both. 

A second difference is “consideration,” which in its most simplistic terms is the benefit which must be bargained for, or the essential reason for the party entering into the contract.  Consideration is the “give and take” of the contract. A contract is not binding unless there is consideration.   

In a Prenuptial Agreement, the wedding itself can be the consideration.  For a Postnuptial Agreement, additional consideration may be necessary, since the marriage contract has already occurred. One example would be giving up an equitable interest to a business or inheritance in exchange for a predetermined lump sum dollar amount.        

Should I Really Encourage My Partner to Consider a Prenup?

Ultimately, love leads to more equitable outcome. Discussing the division of assets when you are in a place of happiness and intent to stay together will benefit both parties in the long-run.  It is a way to show care and respect for one another now and well into the future. 

Liberty J. Weyandt is the Partner and Chair of the Family Law Practice at The Lynch Law Group. If you’d like to discuss a prenuptial agreement, please email her at or by calling (724)776-8000.

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