Prenuptial Agreements are intended to alter what would happen in the event of a divorce or a death in absence of the agreement. In other words, without an agreement if a couple divorces they each have their respective rights under the Divorce Code or, if one of them dies, under the Probate Estates and Fiduciaries Code.
A prenuptial agreement can alter those rights and provide a completely different distribution scheme. Such an agreement can eliminate the right of an opposing spouse to seek spousal support, APL or alimony, in fact it can waive all rights under the Divorce Code. Alternatively such an agreement might be used solely to protect a family business that one spouse is likely to inherit or be gifted from claims of the other spouse, but not dealing with any other asset or issue. One is limited only by one’s imagination as to what can be accomplished with a prenuptial agreement.
Post-separation attacks on prenuptial agreements in Pennsylvania are less likely to succeed than in just about any other state because Pennsylvania does not have requirements such as fairness at the time the agreement was entered or fairness at the time the agreement goes into effect, or the requirement that the dependent spouse have representation of an attorney, as many other states do.
In order to be enforceable in Pennsylvania a prenuptial agreement must meet two tests: (1) it must be clearly and specifically drafted i.e., not confusing or ambiguous as to intent; and (2) there must be full and fair financial disclosure which is generally interpreted quite comprehensively i.e., disclosure of income, assets, liabilities and expectancies. In order to prove that such disclosure was provided, prenuptial agreements usually attach the disclosure documents (tax returns, financial statements, etc.) to the prenuptial agreement and reference the financial disclosures specifically in the agreement. Meeting both tests requires very careful attention.