Topics on this page:
- What is a prenuptial agreement?
- Are there any limitations to prenuptial agreements?
- How can I ensure my prenuptial agreement is enforceable in Maryland?
What is a prenuptial agreement?
Most likely, you have heard of prenuptial agreements by their more common name – “prenup.” A prenuptial agreement is an agreement entered into by two individuals before they get married. Prenuptial agreements can also be referred to as antenuptial or premarital agreements, or prenuptial contracts.
The purpose of a prenuptial agreement is to outline how certain issues, such as property division and alimony, will be decided if the couple divorces. Maryland law does not specifically address prenuptial agreements. Instead, prenuptial agreements are governed by Maryland contract law.
Through a prenuptial agreement, spouses can agree to financial rights and obligations that exist both at the time of marriage, as well as into the future. The most common elements typically addressed in a prenuptial agreement are:
- Property Division: how the couple's assets and debts will be divided in the event of divorce. This can include property acquired both before and during the marriage,
- Alimony/Spousal Support: whether one spouse will pay the other alimony (spousal support), and if so, the amount and duration of those payments.
- Inheritance Rights: whether certain assets or properties are preserved for specific family members or heirs. Special provisions can be included to protect inheritance rights of children from a previous relationship and children born into the upcoming marriage.
Prenuptial agreements can also address each spouse's ability to manage, sell, buy, or otherwise control property during the marriage, whether retirement accounts are divided or kept separate, and how the proceeds of any life insurance policies are distributed.
Are there any limitations to prenuptial agreements?
While a couple can use a prenuptial agreement to outline a wide array of financial and property rights, there are some limitations:
- A couple may not validly contract before marriage to divorce afterward.
- Prenuptial agreements cannot affect child support or child custody.
- A written promise to marry will not be enforced unless the woman is pregnant.
- In Maryland, there is also no legal action for alienation of affections.
Read the Law: Md. Code, Family Law §§ 3-102 and 103.
How can I ensure my prenuptial agreement is enforceable?
The prenuptial agreement must be in writing and signed by both parties. When entering into the agreement, both parties should fully disclose their assets and debts. The agreement should be fair and reasonable and must be entered into voluntarily. The agreement takes effect when the couple marries and remains enforceable after divorce.
Recommendation: Verification of a signature by a notary public, although not required, would further validate the document in later court proceedings.
When creating the prenuptial agreement, it is a good idea for both parties to be represented by independent counsel. Even if the parties draft their own contract, it is a good idea to consult with a lawyer on the language that should be used in the document.
Either spouse can challenge the validity of a prenuptial agreement if any of the following are present:
- fraud,
- duress,
- coercion,
- mistake,
- undue influence,
- incompetence, or
- unconscionability (grossly unfair).
It is generally difficult to challenge a prenuptial agreement. The burden is on the spouse challenging the agreement's validity to prove to the court that the contract should be unenforceable. When reviewing a prenuptial agreement, the courts look to see if the agreement is grossly unfair or if the parties were dishonest in dealing with each other. The courts also look to see that both parties completely disclosed all assets and property to each other before the parties signed the agreement. Full disclosure between the parties is essential to a fair agreement.