The Premarital Agreement In A Simple, Uncontested Pennsylvania Divorce

Posted in Divorce on October 12, 2016

In Pennsylvania, spouses can get a simple, uncontested, no-fault divorce with a minimum of time, effort and expense. If they had entered into a premarital agreement before the marriage to settle matters of property division and other issues upon divorce, they must decide at the time of the no-fault divorce whether to enforce the terms of the prenuptial agreement or mutually rescind the agreement.

(If they cannot agree on carrying it out or rescission, the validity and enforceability of the premarital agreement may end up in court.)

Simple, uncontested divorce

Although fault-based divorce still exists in Pennsylvania, divorce without having to prove the marital fault of one of the spouses is usually easier, faster and cheaper. Instead of showing that one of the spouses is at fault in the marriage, in a simple, uncontested, no-fault divorce, “irretrievable breakdown” of the marriage must be shown.

Pennsylvania statute defines the irretrievable breakdown of a marriage as: “Estrangement due to marital difficulties with no reasonable prospect of reconciliation.” The idea of basing divorce on the permanent breakdown of the marital relationship – whether or not one or both of the spouses are at fault vis-à-vis the marriage – has become available in most states as a reflection of modern realities.

In Pennsylvania, once irretrievable breakdown is established, divorce can be granted once both spouses consent to the divorce or after they have been physically separated for at least two years.

(However, one must not conclude that no-fault divorces are automatically granted after two years of living apart. The defendant is able to contest the case without a lawyer by filing a counter-affidavit provided to the defendant by the plaintiff’s lawyer at no charge wherein it can be alleged – by simply checking off boxes on the affidavit – that the marriage is not broken, the separation has been less than two years or money or property is claimed. Such claims may be entirely false but the burden falls to the plaintiff to schedule court hearings to prove them so. This can easily drive the cost of the divorce through the proverbial roof, placing the final decree beyond the financial reach of ordinary people.)

Premarital agreements in no-fault divorce

Pennsylvania statute defines a premarital agreement as “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” (Premarital agreements are also referred to as prenuptial or antenuptial, or informally as prenups.) Premarital agreements often contain agreed-upon provisions about how property and money matters will be determined should the couple divorce.

Of course, whether a divorce is simple and uncontested, or complicated and a battle between divorcing spouses, property and money will have to be divided and future support payments determined (as well as matters related to children). Normally, the parties can either enter into a marital settlement agreement settling many of these issues by agreement or let the judge in the divorce decide.

However, if they entered into a valid prenuptial agreement that settled these matters, it will be enforceable in the divorce and will set the terms of property division (and other matters). In Pennsylvania, some legal scholars agree that premarital agreements are treated more like commercial contracts than in most other states, and normally a business contract can be cancelled by mutual agreement of the parties.

Presumably then, the spouses could mutually and voluntarily rescind the premarital agreement at the time of divorce and renegotiate the terms of settlement, or let the judge determine these issues instead. (Again, if they cannot agree on carrying out the agreement or rescinding it, the enforceability of the agreement may end up as a contested issue in state court.)

More often than not, whether or not there is a premarital agreement, the parties settle what assets they have privately out of court in which case a post-marital settlement agreement is neither needed by the parties nor required by law.

Seek legal counsel

Any Pennsylvanian seeking a simple, uncontested divorce should get advice and guidance from an experienced commonwealth family law attorney.