Pittsburgh Family Law Services, P.C. Blog

You’ve considered all of your options and decided that a pre-nuptial agreement is the best way to define the terms of your future marriage. Now, you have to draft the agreement. The big choice is between doing it yourselves, using a do-it-yourself form or by using an attorney. With all the expense and time already involved in wedding planning, why would you use an attorney? There are plenty of forms available online either for very little or even free. Some of the AI programs may even be able to draft full agreements for you that look just like an agreement drafted by a lawyer. So why would you spend thousands of dollars on an attorney to draft a pre-nuptial agreement?  

The first thing to understand is that a pre-nuptial agreement is a contract. This means that, once it’s signed, it’s completely enforceable. Even if it’s a bad contract or a bad deal, it’s enforceable. Many couples assume that if they make a mistake, a court will review the contract and invalidate anything that’s objectively “unfair.” This is most likely to come up when a couple agrees that each spouse will keep whatever property they individually acquired. When the marriage ends, the lower-earning spouse says that they didn’t know the other had so much money. Surely, a court should make them go back and re-do this agreement, right? In reality, this is the opposite of what happens. When you sign a pre-nuptial agreement, you are agreeing that you had an opportunity to review each other’s assets, debts, and income documentation. Whether you actually do that or not is up to you. There are plenty of reasons why couples decide they don’t need to see every single piece of information that aren’t about trying to hide assets. Common reasons include: they already talked about their finances, they’ve had joint accounts for years, they personally decide they don’t care enough, or they don’t want the hassle of having to crunch numbers. All of these are completely valid reasons, which is why nobody in Pennsylvania will force you to sit down and physically exchange documents.  

Because these are fully-enforceable contracts, you can run into a lot trouble if you sign a pre-nuptial agreement without legal guidance. Pennsylvania has a set of procedures for how property is to be divided and how spouses will support each other in the event of a divorce. Because most people don’t want to think about divorce when they’re planning a wedding, Pennsylvania has already done the legwork in deciding what will be considered marital property, what will stay out of the marital estate, and whether one spouse will have to pay the other money during separation and divorce proceedings. A pre-nuptial agreement changes this default set of procedures. Often what happens is each spouse agrees to waive all rights to spousal support and decides that any assets such as 401(k)s and bank accounts that are in one person’s name will remain separate property and not be subject to property division. This is the complete opposite of what Pennsylvania law says. Couples can always agree to do something different, but a court will require them to follow it if the marriage ends.  

This of course can work out very badly for the lower-earning spouse who waived rights to everything. It also works out badly for the higher-earning spouse who agreed to pay lifetime alimony and several thousand dollars a month in spousal support. When this happens, many couples start to say “but the court can modify it based on changed circumstances, right?” No. The law provides that agreements like these are non-modifiable and so it cannot be changed. Even in the very rare situation where a court would choose not to enforce it, it would undoubtedly look to some means to make the other person whole. Once you sign a pre-nuptial agreement, regardless of who drafted it, you have to assume that you will never be able to get out of it.  

That’s the biggest issue with the cheap, do-it-yourself forms. A form will not explain Pennsylvania equitable distribution laws to you. It can’t do that; every case is unique and there’s no way to anticipate all potential issues that could arise.  Far from being just a template that you’re stuck with, you and your future spouse can write in provisions about when certain parts of the agreement can be modified. But a form won’t do this for you. It requires really understanding what your concerns are, what your goals are, and how to best achieve them. An attorney who understands Pennsylvania family law and equitable distribution will be able to walk you through this process. Through meeting with you, they can anticipate potential concerns and ask questions to help you design a pre-nuptial agreement that truly represents how you want your marriage to be. A well drafted agreement means that, if you ever need to use it, the divorce and equitable distribution process will be far less time-consuming. Ultimately, the cost of an effective pre-nuptial agreement is far less than the cost of a contested divorce.  

A contract as important as a pre-nuptial agreement cannot be viewed as a do-it-yourself project like wedding favors. Not understanding the ramifications of what you’re agreeing to can have irreversible, financially devastating consequences. Working with a Pennsylvania family law attorney ensures your agreement will be done correctly, and truly reflect what you want to see in the future.