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Prenuptual Agreements
PRE-MARITAL AGREEMENTS: In situations where a party or parties have accumulated assets before the marraige which they wish to keep separate, the parties can enter into an agreement, before marraige, which can accomplish this. This is known as a Pre-Marital or Pre-Nuptial Agreement. Each party has the opportunity to secure his/her own attorney (although each party retaining an attorney is not required by law in order to make the agreement valid), the terms of the agreement are agreed to and then reduced to writing. This is a binding contract which will dictate the terms of a divorce settlement in the event of a subsequent divorce.
Believe it or not nearly 50 percent of all marriages end in divorce. Most end in expensive legal battles that cost thousands of dollars in legal fees, emotional distress and financial chaos.
Many couples deeply in love feel it is not romantic or gives a sense of disloyalty if they tell their significant other about the need to enter into a prenuptial agreement before marriage. The fact is when you step back from your emotions, you are entering into a business partnership. Each of you is going to be contributing, whether financial or otherwise into this new partnership.
So the big question is whether you need a prenuptial agreement. Let's first start with the couple just starting out. You both have jobs, no money and great expectations. The answer is yes, because no one can predict the future. One or both may and probably will change jobs for the better. That means more money, assets, debts, and division of property.
If you have a good paying job and starting to accumulate assets or been previously married a prenuptial is a good idea so everyone knows if this new partnership does not work there is some method to untangle the financial web you have created during the marriage.
If you have children from a prior marriage a prenuptial is a good idea to protect your assets so you can pass them on to your kids.
Remember courts look at an agreement as a contract and will uphold the contract even if it may not be totally equal. The court will not generally reinvent your agreement to save it. Both parties must make a full disclosure of financial assets. A few states frown upon these type of agreements even if written to conform to the laws of the state where you were living when written. Even then it is better to have an agreement because even those courts may well find your agreement valid and fair.
You should both have the agreement reviewed by an attorney. It insures that each of you understands the contract you are entering into and the court is more likely to enforce an agreement where both parties had legal representation.back to top Divorce
DIVORCE: Pennsylvania is a no-fault state. As such, the reasons for the divorce, except in the case of alimony, are not relevant. There are two no- fault ways to get divorced in Pennsylvania. The first way is a consensual no- fault divorce. Under this system, a divorce complaint is filed and served upon the non-filing party. There is then a 90 day waiting period, after the date of service of the complaint, during which time nothing can be filed with the court. This is called the "cooling off period". Once 90 days have passed, so long as the parties have agreed upon all other issues (support, custody, division of property, etc.), the court will grant the parties a divorce after they each sign an affidavit agreeing to be divorced. The other no-fault divorce is the non-consensual divorce. In this situation, one party will not agree to be divorced. The party that wants the divorce must then wait two years from the date the parties separated before that party can ask the court to divorce the parties. After this two year period, the court will divorce the parties even if one party does not consent.
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Custody
CUSTODY: There are two types of custody in Pennsylvania, physical custody and legal custody. In the usual situation, custody is shared between parents, generally with one parent being the primary physical custodian (this means the child lives with that parent the majority of time) and the other being the partial physical custodian (this parent visits with the child, usually pursuant to a schedule). However, such a sharing is not required. Some parents share physical custody of their children equally, and this is called "shared" custody. Legal custody concerns which parent makes the major, important decisions regarding the child. This is shared equally in the vast majority of cases. A custody order is a court order which establishes the type of custodial arrangement the parents will follow. The order generally provides for a custody schedule to be followed. This schedule covers weekly visits, vacation and holiday time, and transportation issues, to name a few.
back to top Support
SUPPORT: Support in Pennsylvania is calculated pursuant to a formula, which we call "guidelines". These guidelines apply only when the net monthly income of husband and wife is $20,000.00 or less and there are 6 or less children. These guidelines consider the income of the husband and wife ONLY. One's expenses are not considered in calculating a support obligation, unless one has what the law considers an "extraordinary expense", which is outside the contemplation of the guidelines. In addition to the support amount, other expenses such as child care, and medical expenses, for example, are not part of the guidelines but are shared by the parties in addition to the support amount. Support is never a permanent order. It is always modifiable if there is a change of circumstances which would warrant either an increase or a decrease. HIGH END SUPPORT: If the net monthly income of both Husband and Wife combined exceeds $20,000.00, the guidelines do not apply in the calculation of both child support and alimony. Rather, a case called Melzer v. Witsberger applies. This case says that in these types of support/alimony cases, the dependent party must prove their actual and reasonable monthly need and this will be the amount of support/alimony.
I cannot emphasize strongly enough that your selection of counsel in these types of cases will by critical. One should only look to very experienced family law counsel to represent you in these types of high end matters. The pitfalls are many and un less your attorney has experience with this particular sub-specialty, you could be very disappointed with the results.
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