This was a summer where prenuptials arrived in profusion, and what made it interesting is that just about all of them involved folks who were either beginning or in the middle of their earning careers. Most prenuptials involve couples who already have kids from former marriages and money they want to preserve for those kids. But we also see prenups for young people who have wealth already transmitted from their parents; parents who want that wealth to stay on their child’s side of the column even after a marriage occurs.

When going through this process with young folks or even people who are in their forties, lawyers ask lots of questions that can be uncomfortable. No one ever really asks a couple how they want to live their financial lives together and yet as McKenzie Frankel, a financial planner in Wayne, PA has observed, a lot of relationships would work far better if those questions were addressed. When it comes to how we manage family and money our expectations are often hard baked into our personalities by our own life experiences. Millennials can be especially interesting to work with because many of them are raised to eschew family and money stereotypes (e.g., mothers stay at home and dad’s do the financial stuff).

I read the Money Personality Quiz developed by Frankel and her partner Joslyn Ewart with interest, but I also considered some far more basic questions that young people in love should be asking each other. I also believe that the answers to some of these questions might be worth incorporating into agreements. Permit me to try my hand at my own “personality quiz:”

  • How important is it to your relationship that you have children, with a “0” reflecting no interest in raising a family and “5” indicating that it was indispensable to agreeing to marriage?
  • Indicate the optimum number of children you would want to have with your intended spouse.
  • Indicate the outer limit of the number of children you think you would want to have.
  • If fertility becomes an issue for either of you, would you be prepared to incur the expense and physical challenges which fertility treatments may involve?
  • If fertility is an issue, indicate your receptivity to adoption and whether there are limits to how far you were willing to adjust to the alternative options adoption may require.
  • If you had a child who suffered physical, intellectual or emotional limitations that prevent one of you from being able to work outside the home, how would you decide which of you would make that financial sacrifice and how would that sacrifice be compensated if the marriage were to dissolve?
  • If your child(ren) had no limitations but you decided that one of you did not want to return to work in order to devote energy to full time parenting, how should that be compensated if the marriage were to dissolve? How should you reduce or limit your lifestyle/expenses once the decision is made and the household income is reduced?
  • If you both had jobs earning equal amounts of money and one of you was offered employment that would require relocation to another city, how much more compensation would the spouse offered the job have to receive before you would agree to move, especially if no substitute job was immediately available in the new market.
  • How important is it to you that your child have the benefit of private school when a reasonable public school is available?
  • Do you see it as your responsibility to provide children with either vocational or academic training after they have completed high school? In a day (today) when a four year public school undergrad degree costs $80,000 and a private school $160,000, what should be your contribution and how do you want to finance the parent portion (e.g., savings or when it comes)?
  • In a day when the average social security benefit for a retiree is about $17,000 a year and the maximum benefit, if you contribute the maximum ($8,000 per annum) and defer to age 70, is $44,000 a year, what kind of retirement income do you hope to have and when do you intend to start financing that via savings? Can you agree now that a portion of your earnings go into some form of retirement and that you would continue that percentage?
  • How important is it to you that you own your home rather than rent a dwelling, “0” being of no consequence and “5” being an absolute necessity?
  • If you earned $30,000 per annum what do you consider a reasonable amount for a monthly auto payment excluding any trade in value (i.e., “0” down)? If your income doubled, would your expectations change and by how much?
  • Is there a level of income where you would prefer to devote additional energy to non-income producing endeavors like charitable work, creative work or occupations which sometimes pay lots of money but typically are low on the income ladder (e.g., acting, writing etc.)?
  • Between 1 and 5, rank your future spouse’s financial stability in terms of their approach to money. If your intended could earn $100,000 but would likely spend more than he earned, that’s a low rank. If your spouse would earn $30,000 but be more likely to still have money for savings he/she is more toward a 5.
  • What is your intended spouse’s current credit rating and what does the credit history look like? Shakespeare said it best: Past is prologue. And it’s a delicate subject, but have tax returns for recent years been filed?
  • Hobbies and collectibles are often a tell-tale signs of financial distress. Gambling, sports or clothing addictions and “collections” (whether cars, handbags, guns or memorabilia) can often take even solid wage earners over the edge. The latter expense often masquerades as an “investment.” We have worked with clients who have tried this. Very few profit from their efforts and many owe large sums on what they do own.
  • What’s the child support situation? Don’t be surprised to find out that a prospective mate who otherwise seems an honorable person owes tens of thousands in back support. There can be many explanations for this and some may be more reflective of neglect than malice but it won’t make any difference, when the $10,000 bonus you deposited to the joint bank account for a trip to Orlando is seized to pay his past due support.
  • Criminal background. This can be a painful look but today Pennsylvania has data online about prior criminal history. It does not include juvenile offenses (which occur before age 18), but any adult bad behavior tends to linger. Make certain you are looking at the right name and verify if possible with a birthdate and/or a social security number. You may be planning a driving honeymoon while your future bride is juggling her second DUI arrest.

So there are two stories here. Know the past of the person you love and talk about the future and how to address it. And while you are discussing the future you may want to think about an agreement that protects you with some promises that could be legally enforceable.

When you marry you usually take on obligations of support for each other. The property you acquire (except by gift) is divisible in divorce. The debt is as well. Most people file joint tax returns which means that any monkey business with the return affects both monkeys even though only one monkey was cooking the books. And except for credit card debt, lots of consumer debt including mortgages are “joint and several.” That’s legalese for “you’re on the hook for the mortgage even though you consistently gave him cash to make the payment.” He just had other priorities.

The author has plenty of real life stories to back up the scary things he just described. What makes the stories tragic is that they were actually avoidable if someone had asked some of the questions before. We have all heard the stories about people online creating an avatar; an identity that does not reflect who they really are. Don’t allow a love-based fantasy to ruin your otherwise stable reality.

Advising individuals as to how to handle their cohabitation with a significant other is becoming an increasingly important aspect of my practice. There are many studies, theories, and myths as to the impact (positive or negative) on whether cohabitating before marriage is beneficial or detrimental to a marriage. A recent New York Times article addresses this very issue and finds that the results from a study by the National Marriage Project at the University of Virginia indicate that those who cohabit are less satisfied with their marriages.

Continue Reading Cohabitation Does Not Always Lead to Happy Marriages

A recent article by Laura Petrecca in USToday highlights a fact which many people forget when considering prenuptial agreements – they are as different as the individuals seeking them.

As we have previously discussed on this blog, the law behind prenuptial agreements makes nullifying a prenup a difficult proposition, but it is also worth mentioning that in the creation of a prenuptial agreement, people have the opportunity to truly define how to deal with existing or future assets, conditions for distribution of assets, and any sort of “behavior insurance” they wish to create. Ms. Petrecca cites examples of limitations on weight gain and cocaine use as illustrative of the range of subject matter people can include in their agreements.

Prenuptial agreements force couples to discuss some uncomfortable truths about their finances and their view of the how money or assets should be treated in the marriage. Ultimately, people can essentially agree to any arrangement they want, provided they are being fully open with each other and making all the appropriate disclosures.

 

If you are considering a prenuptial agreement, take some time to think beyond just the few items you are seeking to protect and don’t be afraid to discuss with your attorney creative ways to structure the agreement so that you and your soon-to-be spouse each feel confident with the level of protection your receiving and secure in your understanding as to how you each are approaching your marriage.

Under Pennsylvania law, traditional contract law principles have been applied in cases addressing the validity of prenuptial agreements. At the same time the case law held that for a prenuptial (i.e., premarital agreement) to be valid there had to be either a fair provision for the financially weaker spouse or a full disclosure. In 1990, the Supreme Court of Pennsylvania abandoned inquiry into fair provision. The single requirement would be a full disclosure of financial resources contemporaneous with execution of the agreement. In 2004 The Pennsylvania legislature enacted 23 Pa.C.S. § 3106. It requires that a party seeking to invalidate a premarital agreement must prove that the party either did not execute the agreement voluntarily, or that prior to execution of the agreement, the party was not provided (i) a fair and reasonable disclosure of the property or financial obligations of the other party; (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (iii) did not have an adequate knowledge of the property or financial obligations of the other party. 23 Pa.C.S. § 3106. Basically, if the goal is to set aside or invalidate a prenuptial agreement, then that party must prove that they signed the agreement against their will or they signed it without knowing their future spouse’s full financial situation, that they did not waive their right to the disclosure of their future spouse’s financial situation, or that their future spouse left out important financial elements from the disclosure they did make.

The language of the statute emphasizes the disclosure of information between the parties, but it also refers to the “voluntariness” of the agreement. Typically, a factual analysis as to whether a prenuptial agreement was entered into voluntarily by a party involves references to the (usually, close) proximity of the wedding to the execution of the agreement, ultimatums for signing the agreement from one party to the other, or some other circumstance that the signing party could construe as placing a heightened degree of pressure on them and, thereby, making their execution of the agreement seem less than “voluntary.” Bear in mind that in an earlier case, Hamilton v. Hamilton, the future bride signed the prenuptial agreement the night before the wedding while pregnant with her future husband’s child. The Court did not agree with the Wife that the Husband’s threat to call off the wedding made her consent involuntary.

Pennsylvania relies on some well established common law principles for determining whether a contract was voluntarily entered into by a party. Causes of action based on fraud, duress, and/or misrepresentation will invalidate an agreement because they undermine the knowledge the parties had when they entered a contract. Simeone v. Simeone, 581 A.2d 162 (Pa. 1990). Coupled with § 3106, litigants are able to attack an agreement based on information contained within it, as well as the circumstances surrounding its execution. These causes of action, however, are fact-driven and due to the preponderance of the evidence standard applied to such cases, require solid evidence in order to successfully overturn the agreement.

In presenting and executing a prenuptial agreement, it is always the best practice to provide parties with sufficient time prior to the event or ceremony to allow the parties the opportunity to review the information, consult an attorney, and execute the document. None of those conditions or an established period of time, however, are required for an agreement to be validated. 

The Supreme Court has also rejected the contention that the a party must show a future spouse’s awareness of her statutory rights before waived. Stoner v. Stoner, 572 Pa. 665 (Pa. 2003). Recently, the Berks County Court of Common Pleas declined to invalidate an agreement on the basis that it that was not reviewed by an attorney. The party seeking to invalidate the agreement had had the agreement in her possession for weeks and had retained an attorney, but neglected to consult with their designated counsel. She was deemed to have knowingly executed the agreement. Savory v. Savory, C.C.P. Berks Co. January 2009. (cite)

Although not impossible, it is clearly difficult to overturn a prenuptial agreement. Nevertheless, in order to ensure that an agreement withstands the careful scrutiny of trial, it is advisable that parties begin to consider prenuptial agreements at the earliest possible time, because, simply put, the courts will not save people from making bad deals, being inattentive or otherwise showing poor judgment. To ensure that a fair deal is struck, parties should agree to consult separate attorneys as early as possible, make full and fair disclosures of their financial positions, and get what can be an extremely awkward aspect of the marriage process out of the way.

If a person cares enough about another to want to marry it can be hoped that he or she would be prepared to make a full disclosure of his/her financial position, and afford the intended spouse the time and resources to have someone independently advise them of the merits of the proposed agreement.   And if you are engaged to someone who does have a problem with making a disclosure or review of the agreement by an independent attorney the warning bells should be sounding. These agreements will bind you for so long as you are married. The value of the legal rights involved in such an agreement is incalculable.

Couples planning to marry often want to know if they need a Pre-Nuptial Agreement (also known as an Antenuptial Agreement). One may ask their estate or corporate lawyer what he or she thinks and the answer may be "yes" in many situations, but three very common ones are if:

  1. It is a second marriage for at least one of the spouses and there are children of one or both people who will inherit instead of the spouse, 
  2. If there is an existing business to be kept out of the marriage, or 
  3. If the parties about to marry do not want to share their assets or the increases in value of those assets after they marry. Frequently, people want to protect their homes or their retirement accounts for themselves or their children.

If the parties fit into these general categories, they may benefit from such a Pre-Nuptial Agreement.

For such an agreement to be valid in Pennsylvania, there must be full and fair disclosure of all of the assets and liabilities owned by each party and a knowing waiver of rights without undue duress. Duress in Pennsylvania is the threat of physical force, not one party saying to cancel the wedding unless the document is signed. Although not required, the best way to ensure that these requirements are met is for each person to have their own lawyer, to sign such an agreement at least 30 days before the wedding, and to have all the assets, their values, and the basis for the valuations, listed in the document. Once properly executed, the document is a contract, the same as if you were buying a house – and its enforceable.

If all of this sounds too expensive or too complicated, the chances are the parties do not need the Pre-Nup!