June is fast approaching and that means wedding season and wedding season means premarital agreements—the often times messy and dreaded task for so many couples who would rather not deal with it. In Pennsylvania, premarital agreements will typically be enforced (no matter how one-sided the terms) as long as each party has provided the other with a full and complete financial disclosure, and as long as there is no defense to the enforceability of the contract. Those defenses include fraud, misrepresentation, duress and undue influence.
Until the Pennsylvania Superior Court’s recent memorandum decision in Orsini v. Orsini, most claims for duress were considered losers. The party claiming duress basically had to allege that the other party was holding a gun to his or her head prior to the execution of the agreement in order to set the agreement aside based on duress. With the Orsini decision, things are not so simple any more.
In Orsini, the wife sought to set aside the parties’ prenuptial agreement based on duress. The trial court held that the wife did execute the agreement under duress and set it aside. The Pennsylvania Superior Court upheld the trial court’s decision.
The day prior to the parties’ marriage, the parties entered into a prenuptial agreement in which the wife relinquished her rights to alimony and all of the husband’s assets, including any assets he acquired during the marriage. According to the wife, the parties did not discuss the agreement during their engagement, and her signature on the agreement was obtained by fraud, misrepresentation, duress and undue influence. The husband had asserted that the wife had had an affair during the parties’ engagement and that was the reason the husband had wanted a prenuptial agreement. There was conflicting testimony as to when the wife learned about the prenuptial agreement but both parties testified that the wife first saw the actual agreement the day before the wedding. The trial court granted the wife’s motion to set aside the agreement, finding that the wife “was not afforded any opportunity to seek the advice of counsel” because she first saw the agreement the day before the wedding. The trial court also credited the wife’s testimony that she had not been advised to seek counsel by her husband’s attorney or by the husband himself. The trial court further found that the agreement did not make any reference to the wife waiving counsel or being afforded the opportunity to seek her own counsel.
The husband appealed the lower court decision to the Superior Court claiming that the wife had not met her burden of proof to establish duress. The Superior Court summarized the following facts: The wife testified that the parties had never discussed a prenuptial agreement until the day before their wedding. In the afternoon on the day before the wedding, the husband showed up at his wife’s home unannounced and told her they were going for a ride. When she asked twice where they were going, he responded that she would see when they got there. Eventually, during the car ride, the husband told her that they were going to an attorney’s office to sign a prenuptial agreement. When they arrived, the wife was taken to a conference room that already had papers set on the table. After the husband’s attorney had her sit down, he flipped through the pages and read the husband’s property off and then he read hers and he told her to “here, sign.” The wife testified that her husband’s attorney did not ask her whether she had previously spoken with an attorney or suggested that she should. According to the wife, the husband’s attorney appeared to be under the impression that she was privy to the agreement. The wife testified that she was confused, caught off guard, very upset, did not say much, and was crying because she felt betrayed and “a little bit hijacked.” After the agreement was signed, the husband paid his attorney and drove the wife home in silence. The wife also testified that she had been in shock at the time and felt pressured to sign the agreement because the wedding was the following day and everything was already planned.
In contrast, the husband testified that because of the wife’s affair, he had told her a few weeks before the wedding that he would only marry her if she signed a prenuptial agreement. He said that the wife provided him with her disclosure of the agreement, which consisted of only two items, and she knew beforehand that they were going to the attorney’s office to sign the agreement. He, however, did agree that she did not see the prenuptial agreement itself until the day before the wedding.
The Superior Court noted that the trial court found the wife’s testimony to be more credible, and the Superior Court held that in doing so the trial court did not abuse its discretion. However, the decision did not end there. The Superior Court also held that the trial court correctly found duress as a matter of law based on the facts of the case. The court noted that duress has been defined as “that degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness.” The court acknowledged prior case law which held that a party with reasonable opportunity to consult with counsel before entering a contract cannot later invalidate it by claiming duress.
The Superior Court agreed with the husband that the wife had not shown any abuse surrounding the signing of the agreement. However, the court found that because there was a lack of opportunity to consult with an attorney, duress had been established. In other words, the wife in Orsini did not have a reasonable opportunity as had been established in prior cases. Where, as in prior decisions, a claimant had months to consult an attorney or in fact did consult with an attorney, the defense of duress had been rejected. In Orsini, because the wife did not know beforehand that a prenuptial agreement was even being contemplated, she did not have the opportunity to contact an attorney or negotiate the terms in any meaningful way before seeing the finalized prenuptial agreement. The Superior Court concluded that the husband had obtained the wife’s assent by way of an ultimatum “sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness.”
There are some practical takeaways from this decision (which is non-precedential but can be cited for its persuasive value):
- Discuss the need for a premarital agreement with your fiancé as far in advance of the wedding as possible and do not give him or her the agreement for the first time the day before your wedding!
- Negotiate the terms of the agreement together and with the assistance of counsel, if possible.
- While a party is not required to have independent counsel in connection with the negotiation and presentation of the agreement, it is strongly encouraged.
- However, if your fiancé decides not to have an attorney review the agreement with him or her, your attorney should send a letter to the unpresented party with a copy of the agreement advising him or her to seek legal counsel and have an attorney review the agreement with him or her.
- State clearly in the agreement that the unpresented party has been advised of his or her right to have independent counsel review the agreement with him or her but has chosen not to do so.
Very often, couples wait until the last minute and don’t want to discuss a premarital agreement because it can put a damper on what should otherwise be a joyful time. However, if you address the issues early and make sure you give each party the opportunity to discuss the premarital agreement with counsel you will avoid a potential issue if your spouse later alleges he or she signed the agreement under duress because they did not have the opportunity to review the agreement with counsel.
