In our initial consultation with our Pittsburgh prenuptial agreement clients, our attorneys explain to the client what can and cannot be included in a prenup as well as the applicable rules on enforcing a prenuptial agreement in case of divorce. In today's blog, we discuss a new case out of Massachusetts which involves enforcing a prenuptial agreement.
In Kelcourse v. Kelcourse, the Massachusetts Appeals Court decided that a provision in a prenuptial agreement would not be enforced because of unfairness. Under Massachusetts law, the enforceability of a prenup depends upon validity when it is first signed and based on the circumstances when its enforcement is contested, the "second look." In this case, the Massachusetts Appeals Court has confirmed the importance of the "second look," by throwing out provisions of a prenuptial agreement due to circumstances that changed during the marriage.
In his analysis of the decision, Rackham Karlsson, a Family Law Mediator in Massachusetts, pointed out that:
"Simply put, the "second look" asks whether, if a prenuptial agreement is enforced, the contesting spouse will have "sufficient property, maintenance, or appropriate employment to support herself." In Kelcourse, that inquiry failed. Enforcing the prenuptial agreement would have meant leaving with wife with a house having "negative equity" and insufficient means with which to repair it, an outcome that the trial judge found would be "unconscionable." The Appeals Court agreed."
In Pennsylvania, a prenuptial agreement is presumed to be valid and enforceable, unless the party contest the prenup can present clear and convincing evidence that the agreement was entered into under fraud, duress, or coercion. They may also challenge enforceability by proving that during the process of drafting the prenup, there was not a full and fair disclosure of assets and liabilities of each spouse at the time of the agreement and a waiver of the disclosure was not included in the agreement.
There are of course other reasons that a judge may decide not to enforce a specific provision, or multiple provisions in a Pittsburgh prenup, but one of these reasons won't be because of the decision of one party not to hire an attorney. The fact that one party chose not to be represented, alone, is not enough for the court to question the enforceability of a prenuptial agreement. For that reason, it is strongly advised that both parties hire their own attorneys to represent them throughout the process of negotiating a PA prenuptial agreement.
If you are getting married and are considering entering into a Pennsylvania prenuptial agreement, contact our Marital Agreement Lawyers at Lisa Marie Vari & Associates. Our lawyers will provide you with the information you need to decide whether a prenup is right for you and will be happy to work with you on a drafting a prenuptial agreement that will protect you in case of divorce. For more information or to schedule a consultation, contact us today!