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prenuptial agreement
INDUSTRY INSIGHT
FAMILY LAW
( often called a“ prenup” or“ premarital agreement”) is a legal contract signed by two individuals before marriage. In Pennsylvania, these agreements are recognized and generally upheld by the courts. They outline how assets, debts, and other financial matters will be managed during the marriage and in the event of divorce or death.
Here’ s how your attorney can help you draft a prenuptial agreement in Pennsylvania and what pitfalls to avoid: How Your Attorney Can Help Your attorney plays a crucial role in ensuring your prenuptial agreement is legally sound, fair, and enforceable. Here’ s what they can do:
1. Educate You on Pennsylvania Law: Your attorney will explain the legal requirements for a valid prenup in Pennsylvania, including the importance of full financial disclosure and voluntary consent. They’ ll also discuss how Pennsylvania law( specifically the Pennsylvania Uniform Premarital Agreement Act- PUPAA) would apply to your finances if you didn’ t have a prenup( e. g., equitable distribution of marital property).
2. Facilitate Open Communication: While a prenup is a legal document, it’ s also a tool for open communication about finances. Your attorney can help guide discussions with your partner about financial expectations and responsibilities while fostering transparency.
3. Identify and Protect Your Assets: They’ ll help you identify all your individual assets( real estate, bank accounts, investments, retirement accounts, businesses, inheritances, gifts, etc.) and debts, and advise on how to best protect them in the agreement. This includes distinguishing between separate property( owned before marriage) and marital property( acquired during marriage).
4. Draft Tailored Provisions: A good prenup isn’ t“ one-size-fitsall.” Your attorney will custom-draft the agreement to fit your unique circumstances and goals. This may include provisions for: o Property and debt division in case of divorce. o Spousal support( alimony) – whether it will be waived, modified, or set at a specific amount / duration. o Protection of business interests. o Protecting inheritances or gifts. o Estate planning considerations( e. g., ensuring assets pass to children from a previous marriage). o How income and expenses will be handled during the marriage. 5. Ensure Full Financial Disclosure: Your attorney will guide you through the process of providing a complete and honest accounting of your financial situation( assets, debts, income, liabilities) which may prevent future claims of misrepresentation.
6. Negotiate Terms: If your partner also has an attorney, your lawyers will negotiate the terms
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Why You Should Have a PreNuptial Agreement Prior to Marriage
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7. Ensure Voluntariness and Proper Execution: Your attorney will ensure you sign the agreement voluntarily, without duress or coercion with the proper formalities.
8. Review and Explain the Agreement: Before you sign, your attorney will thoroughly explain every aspect of the agreement.
Pitfalls to Avoid in the Process( in
Pennsylvania) To ensure your prenuptial agreement is enforceable and serves its purpose, avoid these common pitfalls: 1. Lack of Full and Fair Financial Disclosure: This is perhaps the most critical pitfall. Both parties must provide a complete and honest accounting of all their assets, debts, income, and liabilities. Failure to do so can lead to the agreement being challenged and potentially invalidated on grounds of fraud or misrepresentation.
2. Signing Under Duress or Coercion: The agreement must be entered into voluntarily. If one party can prove they were pressured, threatened, or coerced into signing( e. g., presenting the agreement just days before the wedding with an ultimatum), the agreement may be deemed unenforceable. Start the process well in advance of the wedding( months, not days) to avoid this perception.
3. Lack of Independent Legal Counsel: While not strictly required by Pennsylvania law, it is strongly advised that each party have their own separate attorney review and advise them on the prenuptial agreement.
4. DIY or Template Agreements: Using generic online templates or drafting the agreement without professional legal guidance is a significant risk, as doing so may may not comply with specific Pennsylvania laws or address
your unique circumstances.
5. Procrastination: Rushing the process just before the wedding can create the appearance of duress and may not allow enough time for thorough review, negotiation, and disclosure. Begin discussions and the drafting process several months before your wedding date.
By working closely with an experienced Pennsylvania family law attorney and avoiding these common pitfalls, you can create a prenuptial agreement that provides clarity, protects your interests, and lays a strong financial foundation for your marriage.
This Industry Insight was written by Brooke B. McMorrow. Attorney Brooke McMorrow is the founding member and Managing Attorney of McMorrow Law, LLC located in Wexford, Pennsylvania. McMorrow Law focuses on family law matters such as divorce, custody, child support, guardianship, estate planning, and probate / estate administration in Pittsburgh and the surrounding counties. Attorney McMorrow is collaboratively trained and a certified mediator. She is licensed to practice in Pennsylvania and New York. For a free initial consultation call 724-940-0100 or visit the website at www. mcmorrowlaw. com.
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