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Note: The Uncertain Enforceability of Prenuptial Agreements: Why the “Extreme” Approach in Pennsylvania Is the Right Approach for Review


Couples marrying in the United States are increasingly requesting prenuptial agreements. These agreements offer a substantial benefit, as they allow couples to set their own standards for property distribution at divorce. However, their enforceability remains uncertain. Prenuptial agreements were initially viewed with suspicion during a time when the state was much more involved in regulating marriage, and they remain subject to heightened standards of review in many jurisdictions. Not only are the standards heightened; they are also unclear and vary between jurisdictions, resulting in much uncertainty as to whether a particular agreement will be enforced. The justifications for heightened review are no longer warranted, given that women now occupy a societal position in which they should be viewed as equally as capable as men. To review prenuptial agreements differently from other contracts, as they are reviewed in many states, is to perpetuate stereotypes about women’s capabilities. This Note posits that Pennsylvania has adopted the best approach, as prenuptial agreements are reviewed exactly as other contracts are (with the additional requirement of financial disclosure). The Pennsylvania approach could be improved, however, by the adoption of minor procedural requirements. These include providing couples with information about their rights upon divorce before they marry, and imposing a brief waiting period, much like that required for marriage licenses, to allow couples considering a prenuptial agreement to discuss their expectations and negotiate better bargains.