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Why a Premarital Agreement? |
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| The first thing that comes to mind when one hears the term “Premarital Agreement" is someone with vast amounts of wealth. However, there are many people who should consider a Premarital (also known as an “Antenuptial” or “Prenuptial”) Agreement. For example, a person who is involved in a family business, one who is entering the marriage with children from a previous relationship, one who is anticipating inheriting money or is the beneficiary of a trust may want to address issues relating to their circumstances before a conflict arises. Such an agreement can be crafted so that the parties - not the court system - control the disposition of assets and support issues between the spouses . However, the court will not enforce those parts of a Premarital Agreement that deal with child custody unless they are in the best interests of the child or support of a minor child unless the amounts are in accordance with the laws as they exist at the time support is requested. |
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| How To Approach the Topic |
| If you think that a Premarital Agreement would be appropriate in your case, you should first clearly define your purpose in wanting an agreement, i.e., protection of current assets, business interests, professional practices, pensions, rights of current children. This might best be done in a preliminary meeting with an attorney well ahead of the wedding date to ascertain whether your goals are achievable. Then, if the topic has not been broached, discuss it openly with the other party and listen to their concerns. Ideally the agreement will be negotiated between the parties and their attorneys. Each party should be represented, although one can choose to represent oneself. One attorney never can represent both parties in a Premarital Agreement even if both parties have discussed it and are in general agreement. While there are form “Premarital Agreements” available, it is not wise to rely on generic Agreements which may not accomplish the purpose intended. |
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| Law in Pennsylvania |
| The Pennsylvania legislature recently enacted changes to the Divorce Code of Pennsylvania that for the first time addressed Premarital Agreements. The law governing such agreements had previously developed through various court cases involving estate disputes as well as divorces. Now, all agreements entered into after January 30, 2005 will be enforced by the court if the challenging party signed the Agreement voluntarily or if that party prior to the signing of the Agreement: |
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received a reasonable disclosure of the property and liabilities of the other party; |
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signed a voluntary waiver of the right to additional disclosure of the property and liabilities of the other party; and |
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had adequate knowledge of the property or financial obligations of the other. |
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| Premarital Agreements that predate January 30, 2005, will be enforced under existing case law. Any questions regarding the enforceability of an agreement should be addressed with an attorney. |
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