Prenuptial Agreements

A prenuptial agreement, also referred to as premarital or antenuptial agreement, is entered into prior to marriage for the purpose of determining the couple’s rights and obligations in the event they ultimately divorce.  The agreement must be in writing with a statement of assets attached.  The marriage of the parties triggers the agreement.  The law governing prenuptial agreements in Pennsylvania is 23 Pa.C.S. Section 3106.  The law governing prenuptial agreements in New Jersey is N.J.S.A. 37:2-31 et seq.

Most of the issues involved in dissolving a marriage may be addressed in a prenuptial agreement.  Child support and custody issues, however, cannot be predetermined.  The best interests of the children take precedent and cannot be negotiated away.

In both Pennsylvania and New Jersey essentially the same issues will determine the validity of a prenuptial agreement.

  1. Did the parties enter into the agreement voluntarily?  One element the court might consider in determining whether the agreement was entered into voluntarily is timing.  Was the agreement signed on the eve of the wedding?  The earlier a prenuptial agreement is signed, giving both people ample opportunity to review the agreement and consult an attorney, the better for the defending party in the divorce.  Representation at the time of signing is not dispositive, but enforcement is likely when both parties were represented by independent counsel at the time of the signing of the agreement.
  2. Did one party fail to disclose his or her complete financial situation so that the alternate party was unable to knowingly waive his or her rights?  There must be full and fair disclosure of all the financial elements by the defending party.  It is important that all information is included and that all the included information is true and correct.
  3. The contract itself must be in writing and not contain invalid provisions such as limiting child support or if the provisions are oppressive to one party.  In most cases the invalid provision may be struck down without invalidating the balance of the agreement.

It is also possible for the parties to enter into a postnuptial agreement meaning that the agreement was entered into after the marriage.  This agreement must be based on some consideration other than the marriage.  A postnuptial agreement may be part of a reconciliation and may be enforceable to the same extent as a prenuptial agreement.