The Pennsylvania Divorce Code specifically recognizes agreements entered into “before, during and after” the marriage. A mid-nuptial agreement is entered during the marriage but is otherwise similar in effect to a prenuptial agreement. Because a mid-nuptial agreement is entered after the marriage occurred, it technically is and is sometimes referred to as, a post-nuptial agreement. Generally speaking however a post-nuptial agreement is thought of as a final settlement agreement and is often referred to as a marital settlement agreement or a property settlement agreement.
Mid-nuptial agreements are not anywhere near as common as prenups or postnups. Sometimes they are entered because a parent is intending to make a large gift, perhaps in the context of estate planning, to the Husband or Wife, such as an interest in a business or a piece of real estate, and there is a desire to keep that asset “in the family.” In this limited type of agreement a spouse will be asked to give up all rights in that particular asset but will not be asked to give up rights in any other marital assets such as rights to alimony or equitable distribution of other assets, etc.
The other circumstance that gives rise to consideration of a mid-nuptial agreement is when a couple may be having marital difficulties but neither party has decided to proceed with the divorce and both parties want to try and make efforts to save the marriage. However, they don’t want to be emotionally burdened with might happen to their assets if they fail to reconcile and so they decide up front that in the event they subsequently break up (six weeks, six months or six years later) the agreement will set forth how the economic issues will be resolved. While one hopes that both parties enter into the negotiations for such an agreement in good faith, the private motivations of any individual can never be ascertained with certainty. Nevertheless, mid-nuptial agreements still require, for enforceability purposes, the same formality and tests as a prenuptial agreement i.e. clarity in drafting and full and fair financial disclosure. There is one additional requirement for an enforceable mid-nuptial agreement. While a prenuptial agreement does not require any extra consideration other than the occurrence of the marriage itself, a mid-nuptial agreement, being entered into after the marriage has already occurred, requires separate and real consideration to be given to the spouse who may be surrendering certain rights. A discussion of the type of consideration is beyond the scope of this blog.