Pre Nuptial Agreement in Pennsylvania - PDF

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					                                             Family law
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        client's interests – whether it be regarding divorce and property division, support or custody. It is
        the result that matters to our team of family lawyers. Domestic matters can be volatile and require
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                                                                                                                 Doug Zeiders
Please contact us if we can be of assistance to you.                                             Chair, Family Law Department




                                                                                              Relocation in Custody Cases
                                                                                                 A parent who is separated or divorced and has
                                                                                              primary physical custody of the children, and who
                                                                                              plans on relocating more than a short distance from
                                                                                              their current residence, has an obligation to seek court
                                                                                              approval before doing so. Under Pennsylvania law, a
                                                                                              court has to consider the following three (3) factors in
                                                                                              determining whether or not to approve a relocation.



                                                                                              1
                                                                                                   The potential advantages of the proposed move,
                                                                                                   economical and otherwise, and the likelihood
                                                                                                   that the move will substantially improve the
                                                                                              quality of life for the primary custodial parent and
                                                                                              the children and is not the result of a whim on the
                                                                                              part of the primary custodial parent;



                                                                                              2
                                                                                                   The integrity of the motives of the primary

The Importance of                                                                                  custodial parent in seeking to move and of the
                                                                                                   partial custodial parent in seeking to prevent


Pre-Nuptial Agreements
                                                                                              the move;



                                                                                              3
                                                                                                    The availability of realistic, substitute partial
                                                                                                    custody arrangements, which will permit an
    The primary purpose for a pre-nuptial agreement is to properly protect your                     ongoing relationship between the child and the
assets and income in the event of a divorce. It is particularly important in the case         partial custodial parent.
of second marriages in which the parties already have children. It is neccesaary to
make certain that in the event of your death, your estate is distributed in accordance            The third factor, the availability of realistic, substi-
with your wishes.                                                                             tute partial custody, would seem to essentially preclude
    In understanding the significance of a pre-nuptial agreement with regard to a             relocation in cases involving substantial distances.
divorce, it is important to understand a bit about Pennsylvania divorce law. Under            However, Pennsylvania courts have specifically held
Pennsylvania law, the property that is subject to being divided in a divorce is called        that the logistical problems of maintaining contact
“marital property.” Marital property is defined as all property acquired during the           between the child and the partial custodial parent do
marriage, regardless of title, with certain limited exceptions. Property that you own         not necessarily preclude relocation.
                                                                        continued on page 2                                               continued on page 2


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The Importance of Pre-Nuptials… continued from page 1                                       Relocation… continued from page 1
as of the date of your marriage is, therefore, not marital property. However, the                Generally, the court’s analysis will begin with the
Pennsylvania Divorce Code includes in its definition of marital property any and            motives of the primary custodial parent. If the court
all increases in value of property owned prior to the marriage. A simple example is         finds that the motivation for the relocation is to
a perfect illustration of why a pre-nuptial agreement is important. Let’s say that you      interfere with the relationship between the children
own 500 shares of General Electric worth $10,000 when you get married, that the             and the partial custodial parent, there is no possibility
marriage lasts five (5) years and that, during the marriage, the 500 shares of General      that the court would approve of the relocation.
Electric increase in value from $10,000 to $20,000. Despite the fact that you had           Assuming that the primary custodial parent can
undertaken no effort during the marriage to increase the value of the stock, the            establish that his or her motives are legitimate, the
entire increase in value of $10,000 would be considered marital property and would          court will then review the potential advantages of the
be subject to division in a divorce. The same rule applies to assets of any sort such as    proposed move. If the primary custodial parent can
real estate or retirement plans, assets that can enjoy a substantial appreciation over      demonstrate that the reason for the move is to take a
time. If you want to protect this appreciation, you need a pre-nuptial agreement.           significantly better job or for remarriage or for some
     There are also other good reasons to have a pre-nuptial                                similar reason, there is a significant chance that the
agreement to protect you in the event of a divorce. One of                                  court would approve of the move. On the other hand,
those reasons is to determine exactly how marital property                                  if there is no concrete and significant advantage to
will be divided in the event of a divorce. Many people assume                               the move, the court is unlikely to approve the move.
that marital property is always equally divided between spouses.                                 In those cases in which the court approves of
That simply is not the case. Very often, under Pennsylvania                                 the move and the distance involved does not permit
law, the spouse with the lower income or a smaller asset base                               continuation of the already established custody
will receive more than 50 percent of the marital estate. Through                            schedule, the court will establish a new custody
                  a pre-nuptial agreement, you can decide that                              schedule. In such a situation, the partial custodial
                    any marital property will be divided equally,                           parent will no doubt see the child less often, but will
                      regardless of who is in a better economic                             see the child for longer periods of time. For instance,
                      position at the time of a divorce.                                    it is not unusual in a situation in which there is a
                           Other divorce-related matters that can be                        significant geographic distance between the parties
                       dealt with as part of a pre-nuptial agreement                        for the court to order the children to spend school
                         are spousal support and alimony. In                                vacations and a large portion of the summer vacation
                         the absence of a pre-nuptial agreement                             with the partial custodial parent.
                         containing a waiver of spousal support and alimony, the                 Given the increasing mobility of our society,
                        spouse with the lower income will, in most circumstances,           custody relocations have become more and more
                        be able to get spousal support and possibly alimony if the          common. That being said, it is important to keep in
                        parties are separated or divorced. A particularly troubling         mind that custody cases tend to be very fact specific.
                        example of what can happen that I often describe for my             In other words, while the general rules concerning
                        clients is a situation in which a husband and wife separate         custody relocation set forth above do apply to each
                       only after a couple of years of marriage. If the spouse with         case, cases that, on the surface, may appear to be quite
                      the lower income is able to drag out the divorce for two              similar, may well be decided differently depending
to three years (and that is not all that difficult), it is quite possible that he or        on the particular details of the case. For this reason,
she can receive spousal support for a longer period of time than the marriage               it is important for any parent with primary physical
actually lasted.                                                                            custody of a child to consult with an attorney early
     Another important reason to use a pre-nuptial agreement has nothing to do with         on when considering a possible relocation. n
divorce, but has to do with making sure that, in the event of your death, your estate
is distributed exactly as you want it to be distributed. This is a particularly important
consideration in the case of second marriages in which both parties already have
children and want to make sure that those children are properly provided for in the
event of their death. The reason this is an issue is because, under Pennsylvania law,
there is a spousal election that can be made by the surviving spouse to get a third of
the deceased spouse’s estate, even if the deceased spouse did not leave the surviving
spouse that much in their will. So, in the absence of an agreement, such as a pre-
nuptial agreement, which contains a waiver of the spousal election, your will will
not necessarily control the disposition of your estate.
     Of course, the discussion above cites just a few examples of the importance of
a pre-nuptial agreement. There are a number of other issues that arise by virtue of           375 Morris Road • PO Box 1479 • Lansdale, PA 19446-0773
a marriage that can and should be dealt with in a pre-nuptial agreement. n                  Telephone: 215-661-0400 • Fax: 215-661-0315 • www.HRMML.com



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