While viewed as taboo by many, prenuptial or premarital agreements can be beneficial to a marriage and are frequently utilized by engaged couples.  This is especially true if one or both of the parties is older, has assets, and/or has children to whom they wish property to pass upon their death.  The prenuptial agreement can be designed not only to protect assets in the event of a divorce, but to protect assets from automatically passing to the spouse upon the parties death, rather than to the children.  Nevertheless, when a divorcing couple has a prenuptial agreement, it is proper to review (for both offensive and defensive purposes) whether the agreement is voidable.  This article seeks to highlight the law in Pennsylvania invoked when a client asks: can I void my prenuptial agreement?

While there is a lot of caselaw on the subject that provides nuances to this area of the law, generally speaking the statutory answer lies in 23 Pa.C.S. § 3106(a), “Premarital Agreements.”  3106(a) declares that the party seeking to void a prenuptial agreement bears the burden of proof.  That burden is “clear and convincing evidence.”  Clear and convincing evidence, is defined as “testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.”  See In re ALD, 797 A.2d 326, 336 (Pa. Super. 2002).

What then needs to be proven by clear and convincing evidence?  3106(a) provides the party seeking to void the prenuptial agreement with two paths to invalidation.  The voiding party needs to prove either: (1) that the agreement was signed involuntarily; or (2) before the execution of the agreement, (a) the voiding party was not provided with a fair and reasonable disclosure of the property or financial obligation of the other party, (b) the voiding party did not voluntarily and expressly waive, in writing, the right disclosure of the property or financial obligations of the other party beyond the disclosure actually provided, and (c) the voiding party did not otherwise have adequate knowledge of the property or financial obligations of the other party.  In other words, to void a prenuptial agreement, you will need to prove that did not voluntarily sign the agreement (e.g., physical duress, mental incapacity, etc.) or that your spouse hid assets or liabilities from you which were completely unknown to you and you did not adequately sign away your right to the disclosure of this information.

If you or a loved one have any questions regarding a prenuptial agreement, please contact me directly at mhovey@gmail.com.  Thank you.