Is a postnuptial agreement legal in PA?
Unlike premarital agreements, few states have actually adopted an act that regulates postnuptial agreements. Most states, however, recognize postnuptial agreements either indirectly through statutes that allow married persons to contract with one another or directly through marital agreement statutes or caselaw. Although the requirements for making a valid postnuptial agreement vary by state, the general factors that are important in the states that permit postnuptial agreements include:
1) Parties must be of age and competent.
2) Agreement must be in writing, signed voluntarily by both parties (without duress), and recorded if it involves real estate.
3) Some states require agreement to be witnessed and/or acknowledged by a notary public or other certifying officer.
4) Adequate consideration for agreement.
5) Subject matter of agreement must not be against public policy.
6) Full disclosure of both parties’ assets and liabilities.
7) Fairness at time of execution of the agreement, and in some states, at time of divorce.
8) Some states require parties to be represented by legal counsel, and in some states, representation must be separate.
9) Some states do not allow agreement to be used to determine rights of children to child support or child custody/visitation issues, and in some states, agreement cannot be used to determine alimony/support issues.
10) Some states do not allow agreement to be made in contemplation of divorce or separation.
The applicable Pennsylvania statutes are as follows:
Title 23, Part IV, Chapter 31, 23 Pa.C.S.A. § 3104. Bases of jurisdiction
(a) Jurisdiction. — The courts shall have original jurisdiction in cases of divorce and for the annulment of void or voidable marriages and shall determine, in conjunction with any decree granting a divorce or annulment, the following matters, if raised in the pleadings, and issue appropriate decrees or orders with reference thereto, and may retain continuing jurisdiction thereof:
(1) The determination and disposition of property rights and interests between spouses, including any rights created by any antenuptial, postnuptial or separation agreement and including the partition of property held as tenants by the entireties or otherwise and any accounting between them, and the order of any spousal support, alimony, alimony pendente lite, counsel fees or costs authorized by law.
(2) The future care, custody and visitation rights as to children of the marriage or purported marriage.
(3) Any support or assistance which shall be paid for the benefit of any children of the marriage or purported marriage.
(4) Any property settlement involving any of the matters set forth in paragraphs (1), (2) and (3) as submitted by the parties.
(5) Any other matters pertaining to the marriage and divorce or annulment authorized by law and which fairly and expeditiously may be determined and disposed of in such action.
23 Pa.C.S.A. § 3105. Effect of agreement between parties
(a) Enforcement. — A party to an agreement regarding matters within the jurisdiction of the court under this part, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this part to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement.
(b) Certain provisions subject to modification.— A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.
(c) Certain provisions not subject to modification.— In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court.