In July 2020 we wrote about a precedential decision called Lewis v. Lewis, 234 A.2d 707, 711 (Pa.Super.) where what might be described a “fairness in execution” doctrine appeared to be substituted for traditional notions of “duress”. All prenuptial cases like to begin their analysis with the concept that a contract is a contract whether the parties are doing so commercially or “maritaly.”(sic)
So here are the facts. On August 20, 2004, the eve of their marriage, Alfred invited the love of his life to “go for a ride.” Jennifer asked where they were going to which the response was “You’ll see when we get there.” Alfred did reveal a few moments later that they would be going to his lawyer’s office. Upon arrival, a conference room awaited as did a prenuptial agreement. Alfred signed the agreement then Jennifer signed. Husband paid his attorney (always a nice touch) and then our couple got back in the car and Alfred took Jennifer back to her home. Needless to say, on August 21, 2004 the couple was married despite Jennifer’s feelings that she had been “betrayed” and “a little bit hijacked.”
Fast forward 15 years and Jennifer filed for divorce and to set aside her prenuptial agreement on the basis of duress. A hearing is held . Jennifer’s version is recited above. Alfred testified that Jennifer cheated on him during the engagement and that he told her he wanted a prenuptial because of it. He said he gave her notice of this and that she had provided the assets listed on her disclosure which he had related to his attorney.
The trial court tossed out the agreement because Jennifer was not afforded any opportunity to secure counsel and because she was not told either in the agreement or by husband’s attorney that she had a right to counsel. Keep in mind that in 2005 the General Assembly elaborated on what would be required in invalidate an agreement. 23 Pa.C.S. 3106 doesn’t require any of those things.
Equitable distribution proceeded based upon the determination that the agreement was invalid. Alfred then appealed asserting that the trial court had applied the wrong standard. We don’t have his briefs but presumably he cited the same cases as last week’s Superior Court ruling. They would have included Simeone, 581 A.2d 162 (Pa. 1990); Hamilton, 591 A.2d 720 (Pa.S. 1991) and Lugg, 64 A.3d 1109 (Pa. S. 2013).
The Superior Court affirmed the trial court. Playing off a case called Adams v. Adams, 848 A.2d 991 (Pa.Super. 2004) and the recent Lewis ruling from 2020 the Court appears to be saying that duress may well be presumed if there is insufficient time to confer with counsel. In the instant case, there was no suggestion that the bride was threatened in any way except to be told that there would be no wedding without an agreement. Ironically, the Court notes that in the Supreme Court’s Simeone ruling the wife alleged that she had signed the agreement because the wedding was the next day. On its face it would appear that the Superior Court is attempting to overrule Simeone. The facts appear to be congruent.
What makes this more alarming is that the current case and Lewis both assert that marital contracts are like any other except that in none of these cases is there a discussion of the legal responsibility to act once the condition creating the duress has passed. This is a lengthy marriage and one where the wife had 15 years after the execution of the agreement to confer with counsel and file a declaratory action to set aside the agreement. Wife did nothing, thereby lulling husband into thinking that he did have a valid agreement. The Courts had been clear that duress victims could not “sit” on contracts that had been secured by coercion or fraud. But, as in Lewis, we see a kind of presumption that absence of counsel can be duress but no responsibility to act. Furthermore, if this is the rule of law and that “prenuptial agreements are governed by contract principles” does this mean that a party suing in any contract should aver that the defendant had access to counsel? Should absence of access to counsel become an affirmative defense under Pa.R.C.P. 1030?
The irony here is that 33 years ago, the Supreme Court said that with passage of the Equal Rights Amendment in Pennsylvania and the evolution of women toward equality, “old principles” suggesting that women needed contract protection were obsolete. The two dissenters in Simeone agreed but said that contracts affecting marriage were not like any other contracts. It appears three decades later that the dissenters were correct.
Orsini v. Orsini 791 W.D.A. 2022 (2/28/23) Non-precedential