The law presumes that marital agreements between adults in Pennsylvania are valid absent fraud, coercion, or duress. Even agreements between husband and wife. But what is duress?
Duress: The Proverbial Gun to the Head
In the case of Lugg v. Lugg, 64 A. 3d 1109 (Pa. Super. 2013), the Pennsylvania Superior Court stated that “duress” is defined as “[t]hat 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 went on to say, “[in] the absence of threats or actual harm there can be no duress where the contracting party is free to consult with counsel.” A person operates under duress if they are threatened with danger or violence.
In Lugg Husband and Wife began negotiating the terms of a postnuptial agreement. Wife had a draft of the agreement reviewed by an attorney. Wife’s attorney informed Husband that all negotiations would be conducted through Wife’s attorney. Despite this, Husband continued to contact wife to request she sign the agreement. Wife negotiated with Husband and agreed to sign the agreement. The parties set a day to sign the agreement. On that day, Wife changed her mind and became involved in an hour and a half of back and forth with Husband. Wife eventually signed the agreement. The Court held that these facts did not rise to the level of coercion that would constitute duress.
How to Avoid Charges of Duress
Because marital agreements are presumed to be valid absent fraud, coercion, or duress, it is the responsibility of the party challenging the agreement to prove fraud, coercion, or duress. To avoid a charge of duress, it is best practice for the parties to avoid threatening each other to sign the agreement. (Obvious, right?). But the law provides an additional safeguard. Each party should have the opportunity to consult with a family law attorney to review the agreement. This does not necessarily mean the parties have to consult with an attorney. It only means that you should give the other party the opportunity to consult with counsel. So, how do you do this? Your family law attorney should present the agreement to the other party. That is to say, give the other party sufficient time to review the agreement and present it to their own counsel. For example, give the other party several weeks to review the agreement with counsel.
If you live in Pittsburgh or the surrounding areas and are interested in entering into a premarital or postmarital agreement, contact the Pittsburgh family law attorneys at Dodaro, Matta, & Cambest, P.C. today at 412-243-1600 to schedule a consultation. We can draft your Pennsylvania prenup or postnup with the necessary language to stand up against an accusation of duress.