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Prenuptial agreements offer blended families a way of estate planning as well as protecting spouses in the event of a future divorce.

Anyone in Pennsylvania who has been prematurely widowed or divorced at least once knows that sometimes a marriage does not last as long as originally hoped or planned. Many people choose to get remarried and often question whether they need a prenuptial agreement for various reasons.

The American Academy of Matrimonial Lawyers noted in a 2016 survey that the prior three years had seen a jump in the number of prenups created.

Protection in the event of another divorce

The possibility of a divorce always exists and that can spell financial disaster for some. In addition to salvaging some assets, U.S. News and World Report notes that a prenup might even help protect one spouse from getting stuck with the other person’s debt.

Many people go into second or third marriages with children (or grandchildren) from previous relationships whom the parents or grandparents want to protect financially in case remarriage ends in divorce.

In divorce, separate property that belongs only to one spouse because he or she owned it prior to the marriage or received it as a gift or inheritance that continues to be held in that person’s name alone normally remains the property of that spouse, however, the increase in value becomes marital. This can be sheltered by a prenuptial agreement so that the increase in value can also be protected. Marital property, meaning assets accumulated during marriage by either spouse or by them jointly, is divided equitably or fairly in divorce unless a prenuptial agreement determines what assets are distributed and in what percentage. A prenuptial agreement also may be used to determine the level of spousal support or alimony or if there is a payment at all to the other spouse.

In a prenuptial agreement, the parent of a child from a prior relationship could negotiate that part of future marital property go to that child. For example, the parent might want to direct the marital part of his or her retirement accounts or part of the equity in other accounts or assets go to support or benefit the child, rather than becoming part of the marital property subject to division.

If the child has disabilities, the parent might want certain assets of the marriage to go into a special needs trust to protect the child’s future.

A prenuptial agreement entered into before the marriage can set forth the course of what will happen in a divorce and eliminate doubts on motives of the spouse.

Lifestyle provisions

Trying to include some lifestyle provisions might not be reasonable, such as how one spouse should wear their hair. Other matters may well be included in a marital contract. According to Time, use of social media is a topic often referenced in these documents nowadays to prevent one person from publicly humiliating or denigrating the other during or after a divorce.

A prenuptial agreement might also designate who will get the family’s pets if the couple divorces.

Estate planning assistance

Fidelity Investments explains that a prenuptial agreement can aid in a couple’s estate planning, especially when one or both spouses has children from prior marriages.

People may understandably want to take care of their spouses after they die. They also might want to make sure that their children or grandchildren from previous relationships receive certain assets or family heirlooms.

With no prenup directing assets to people outside the marriage, a spouse might automatically inherit certain assets when the other person dies even if there is a will in place as a spouse can elect to take against a will. The surviving spouse could live for quite some time longer in which case there may be little to nothing left of the estate to pass on to the deceased spouse’s children. The surviving spouse might also leave remaining assets to their biological children only and not the children of the spouse who died first. A prenuptial agreement can be used to waive that elective share and allow the will to control in the event of death.

Family businesses

Oftentimes there may be a family business that a spouse wishes to keep separate in the event of death or divorce. The spouse and his or her family may desire to keep the business intact and in the hands of family members or other owners or to avoid expensive and intrusive evaluations of their records. A prenuptial agreement can aid in easing the mind of other family members and creating a better family environment without the threats that may otherwise occur.

Otherwise, if the other spouse has an interest in the business in divorce or as an heir, the business might have to be sold or take on significant debt to pay the other spouse his or her share. In addition, if the business becomes embroiled in a court proceeding, the discovery process to determine its size, value and ownership can be expensive.

Legal assistance

Anyone contemplating remarriage should contact an experienced attorney prior to walking down the aisle for the second time. This will give him or her the insight of a professional to help make decisions about a prenuptial agreement. At a minimum, no potential spouse should sign a prenup before talking to a lawyer about its implications.

The family lawyers at Karen Ann Ulmer, P.C, represent people approaching remarriage in Eastern Pennsylvania and New Jersey, including providing advice about, reviewing, drafting and negotiating prenuptial agreements. The are available for consultations by phone prior to coming in to the office to determine if you would benefit from a prenuptial agreement.

Divorce affects one in two marriages in the United States every year, and as time passes that percentage continues to increase. If you are involved in a marriage, it is important that you remain cognizant of the common signs that ultimately lead to divorce. If these trends are present in your relationship, there are some methods you may employ in order to save your marriage.


If your marriage is becoming an overwhelmingly negative experience there is a good chance your marriage is going to be coming to an end. Carrie Krawiec, a marriage counselor and therapist out of Michigan, suggests that for every single negative moment there should be five positive moments. This 5:1 ratio seems to be the balance required to maintain good chemistry between partners.


When unremorseful infidelity occurs there is also a very high likelihood the marriage is going to end. To the surprise of many, cheating can be overcome. In order to do so, it must be met with genuine understanding, love, compassion, and an unrelenting effort from both sides to fix that which was broken.


The decline of physical interaction between partners is a sign that the marriage is on the decline. This point goes far beyond sexual interactions. The simple things that have huge implications include hand-holding, hugs, kisses, and general physical contact. Body language is a very primal and intimate way to communicate sensually with your partner, and when that ends the marriage is likely to end as well.


Enough of the negative. Let’s look at some signs that suggest your marriage can be saved.


If you and your partner continue to go on dates there is a high likelihood that your marriage is salvageable. There is no doubt that our day to day lives have become filled with more and more chaos and to-do’s than those in the past. However, if you and your partner still make time to spend a Friday evening with one another for quality “couple time” there is a chance that the marriage can be saved.


If one partner fails to remain faithful, it doesn’t mean that the marriage is over. Despite the harsh negative emotions that accompany cheating, if both parties truly want the marriage to continue there are ways to make it happen. Understanding that cheating is usually the symptom of a larger problem within the relationship gives both partners the foundation upon which they can build.


Finally, if you are still comfortable enough to share your thoughts and emotions with your partner, the union is likely still strong enough to save. If both parties are able to offer a sanctuary within which they can truly be themselves, there are positive implications on the strength of the relationship.

As a wedding day approaches, most couples are consumed with thoughts of dresses, flowers, music, food, fun, and love. The last thing anyone wants to think about, much less talk about, is how assets will be divided in the event of divorce! However, this is a conversation that many couples need to have. Marriage is full of tricky discussions – it’s ok to start practicing that skill now.

There are many benefits to talking about a prenup. One of those is that the discussion will force you to look at your financial situation and examine both of your attitudes about money. Frankly, a deep discussion about finances should be a prerequisite to marriage, as money is a huge source of friction and discord in many relationships.

Beyond the benefits of discussing financial matters, there are several situations in which having a prenup in place is a good idea, such as:


  • If there is a large financial disparity between the two parties
  • If you own all or part of a business
  • If one of you has a large amount of debt
  • If you are remarrying, especially if there are children involved.

Regardless of your reasons, discussing a prenup can be difficult. Sometimes both parties heartily agree to a prenup. In other cases, one person has to convince the other. Here are a few tips for approaching the subject of a prenup:

Pick the Right Time

Don’t bring up a prenup in the heat of the moment or in the middle of an argument. Likewise, don’t introduce the topic in the middle of a romantic dinner to commemorate the anniversary of the day you met. Pick a quiet, neutral time to bring up the topic – when you are both well-rested and calm.

Consider a Mediator

You could suggest a meeting with a mediator who can help you discuss the advantages of a prenup impartially and without emotion. If you decide to move forward and draft a prenup, the mediator can also help you by asking all of the important questions, gathering information, and offering sound, logical advice. Again, a mediator can remove the emotion from a tender subject.

 

Be Honest

Be truthful and straightforward about why a prenup is important to you. Be very open about your financial situation – the good, the bad, and the uncertainties.

Listen

If your partner is opposed to the idea of a prenup, listen to their concerns. Don’t jump right in with arguments.

While you certainly do not expect your marriage to end in divorce, a prenup can allow you to open important lines of communication, have an honest dialogue about financial matters, and ultimately allow you to retain more control of your financial situation, rather than giving that control over to the court system. Approaching the topic is not easy. Remember that a trained attorney can help.

A common law marriage is distinguished from a regular marriage in that no marriage license is required. Instead, parties just have exchange words of intent to be married and hold themselves out to their community as a married couple. Often, the parties also lived together for some length of time as well. Common law marriage was abolished in Pennsylvania in 2005. Parties who met the requirements for common law marriage prior to 2005 can still be recognized as valid marriages. Once a common law marriage is established, it can only be resolved by divorce just as with any regular marriage. Moser v. Renninger, 2012 PA Super 59 (2011) discusses how to evaluate whether a valid common law marriage exists.

In Moser v. Renninger, Wife filed a divorce complaint on November 19, 2010 stating that her and Husband had entered into a valid common law marriage in 1985. Husband subsequently filed an Action for Declaratory Relief asking the court to declare that no common law marriage ever existed. Initially, the court held a common law marriage was in fact established on June 8, 1985. Husband immediately sought to appeal the court’s finding but his appeal was denied on the basis that it was premature. The court held that since the issue of whether there was a common law marriage or not was raised in the context of the divorce, Husband could not file an appeal until the divorce matter was final. The court also noted that if the issue of common law marriage is raised outside of a divorce, an immediate appeal would be appropriate.

Gone are the days when prenuptial agreements are viewed as contracts on a marriage or a guarantee on divorce. While some religions and cultures still do frown upon them, they can be a great way to talk about finances and strengthen your marriage with clear expectations. If you have children from a previous relationship and significant assets to protect, a prenup can also make everyone feel more comfortable.

What is a prenup? A prenuptial agreement, also known as an antenuptial agreement here in PA is a formal agreement entered into before marriage in which the future spouses agree to provisions for equitable distribution of assets, debts and spousal support in case they divorce in the future or if they wish to provide for what happens to assets in the event of death by waiving a spousal election which is provided for in each state under the state law. In this document you can discuss current financial positions and how finances are going to be handled during the marriage, and whether you wish your will to control in the event of death.

The general purpose is for future spouses to think about and decide, prior to a marriage, their rights and duties concerning financial issues. These agreements can be especially helpful because putting one together forces the parties to discuss financial issues, a topic many of us avoid and is a common reason for divorces. If one or both parties have a substantial income, assets or debts these agreements may be a good option.

If one of you has significant assets or had to pay handsomely in a previous divorce, a prenuptial agreement can put one’s mind at ease that the less well-off party is not marrying for money.

In case a divorce does happen and if the agreement is valid, the issues agreed to in the contract are settled. Whatever issues not included in the agreement need to be worked out or failing that, litigated.

What makes a prenuptial agreement valid?
It is important to note that a prenuptial agreement’s validity is only determined when it comes into question in either a divorce or estate proceeding. This is why the writing of a prenuptial agreement must be done by an attorney who has significant experience in this area. There are a few general requirements to which make a prenuptial agreement valid:

· The agreement is in writing,

· Signed by both spouses, and notarized.

· Accompanied by a statement of assets for both parties and includes an estimated net worth as well as previous tax and salary information.

· The agreement cannot be the result of fraud or duress. It is a good idea to complete the prenuptial agreement and signing far before the wedding to rule out the appearance that it was forced on one party by the other.

· The parties understood and accepted the terms and conditions of the agreement, agreed to it voluntarily and had enough time to think about it prior to signing it. This includes the opportunity for both parties to consult with their own attorneys and make changes to or discuss points in the document.

· The agreement is fair and not “unconscionable,” which it may be even if what one spouse receives is small or disproportionate compared to what the other spouse receives, as long as one spouse is not left destitute.

Prenuptial agreements, like any contract, can be changed with the agreement by both parties.

A valid prenuptial agreement should shorten if not prevent disputes over financial issues if a marriage ends or a spouse dies, but issues they don’t cover are child custody and child support which can be especially contentious depending on the parties. If they can’t reach an agreement these issues would be decided in court, which can be a long, expensive and emotionally painful process.

Whether or not you signed a prenuptial agreement and your marriage is heading for a divorce, contact our office so we can talk about how mediation could bring an end to the disputes between you and your spouse, allowing you to start a new chapter in your life without the emotional and financial trauma that a divorce can inflict.

The Philadelphia Center for Emotionally Focused Training is sponsoring a workshop for couples on February 2, 2013 titled “Hold Me Tight.” The focus of the workshop is to help couples reconnect and move forward in a more loving relationship. Dr. Ruth Jampol and Dr. Nancy Logue will be facilitating the workshop which will use the book written by Dr. Sue Johnson titled “Hold Me Tight: Seven Conversations for a Lifetime of Love.” The workshop will be held at 102 West Maple Avenue, Langhorne, PA 19047 from 9:30 AM until 4:30 AM. Potential participants are encouraged to register in advance. Additional information regarding the workshop can be found in the flyer on our home page as well as the link below.

“Hold Me Tight” Couples Workshop

Given the statistics on the likelihood of divorce, many couples are opting to enter into pre-nuptial agreements to protect their rights in the event of a divorce. A pre-nuptial agreement is a private contract between the parties entered into prior to their marriage that outlines how assets and debts will be handled if the parties subsequently divorce. A basic and straight-forward pre-nuptial agreement would provide that each party retains anything they acquire in their own name and that anything marital or acquired jointly will be divided based on the divorce laws. A pre-nuptial agreement may also provide for an increasing amount of support to a spouse based on the number of years married or number of children produced. Alternatively, one spouse may be required to pay support as a punishment if they commit adultery during the marriage.

Since a pre-nuptial agreement is a contract is must meet several requirements to be held valid. One, there must be a full and fair disclosure of the financial resources/existing assets by both parties. If there is not such a disclosure, there must be a provision in the agreement providing that the parties voluntarily and expressly waived the right to disclosure. Two, it must be clear that both parties voluntarily entered the agreement. For these reason, the agreement should be signed well before the wedding to avoid any challenge to the agreement that a party was forced to sign because the wedding date was fast approaching. Finally, steps should be taken to make sure the agreement is not invalidated on the basis of fraud, duress and/or misrepresentation. Any challenge under the above listed causes of action will require a fact-based analysis with the standard being a preponderance of the evidence, or more likely than not. Overall, it is difficult to overturn a pre-nuptial agreement once entered into, however, it can provide some peace of mind if the parties do not end up living happily ever after.

Learn more on Prenuptial Agreements