Prenuptial & Postnuptial Agreements (23 Pa.C.S. Chapter 32)

A prenuptial agreement (or "premarital agreement") is a contract between two people who are about to marry, establishing in advance how property, debts, spousal support, and other financial matters will be handled in the event of divorce or death. A postnuptial agreement is the same concept, entered into after the marriage has already occurred.

These agreements are governed by 23 Pa.C.S. §§ 3103–3106. Pennsylvania law generally favors enforceability — the courts treat these as contracts between adults who are presumed to understand what they're signing. But the law also has important safeguards against overreaching.

What a Prenup Can Cover

• Property division: How marital property will be divided (instead of equitable distribution)
• Premarital assets: Protecting assets each party brings into the marriage from being classified as marital property
• Business interests: Shielding a business, professional practice, or family enterprise from equitable distribution claims
• Spousal support / alimony: Waiving or limiting alimony — though Pennsylvania courts can override an alimony waiver if enforcement would leave one party on public assistance
• Inheritance rights: Waiving the right to elect against the other spouse's estate (spousal election under 20 Pa.C.S. § 2203)
• Debt allocation: Determining responsibility for debts each party brings into the marriage or incurs during the marriage

What a prenup cannot cover: Child custody and child support. Courts will not enforce any provision that predetermines custody or limits child support, because those decisions must be made based on the child's best interest at the time of the dispute — not years in advance.

Enforceability — What Makes a Prenup Stick

Under Simeone v. Simeone, 525 Pa. 392 (1990), the Pennsylvania Supreme Court significantly liberalized prenuptial agreement enforcement. The court held that prenups are contracts and should be evaluated under contract principles, not paternalistic notions of fairness. However, a prenup can still be challenged on three grounds:

1. Involuntariness: Was the agreement signed under duress, coercion, or undue pressure? Springing a prenup on someone the night before the wedding is a red flag. Courts want to see that both parties had adequate time to review the agreement and consult with independent counsel.
2. Failure to disclose: Each party must make a reasonable disclosure of assets, income, and financial obligations — or the other party must explicitly waive the right to disclosure. If one party hid significant assets, the agreement may be voidable.
3. Unconscionability at enforcement: If enforcement would be so one-sided as to be unconscionable — typically meaning one party would be left destitute or on public assistance — the court may refuse to enforce the support waiver provisions.

Best Practices for a Bulletproof Agreement

• Begin the process months before the wedding, not weeks or days
• Each party should have independent legal counsel — not the same attorney representing both
• Both parties provide full financial disclosure attached as exhibits to the agreement
• Include an acknowledgment that each party had time to review, consult with counsel, and sign voluntarily
• Don't overreach — a "fair" agreement is far more likely to be enforced than one that leaves one party with nothing
• Consider a sunset clause — a provision that modifies or eliminates the prenup after a certain number of years of marriage

Postnuptial Agreements

Postnuptial agreements are subject to the same rules as prenuptial agreements, with one additional consideration: because the parties are already married, courts may scrutinize the circumstances more closely for duress or undue influence. A postnup signed during a marital crisis (e.g., after an affair) may face heightened scrutiny, but it's not automatically unenforceable. The same principles apply: full disclosure, independent counsel, and voluntariness.