Protect Your Relationship Before Marriage With Prenup Agreements
You can show respect for your partner’s previous successes – and protect your own property – by crafting a fair prenup before wedding bells ring.
The Law Office of James E. Crawford, Jr. & Associates, LLC works with couples in every situation to create fair prenuptial agreements that everyone hopes will never be used.
What Does A Prenup Do In Maryland?
Prenuptial agreements establish property ownership, alimony, and other possible points of contention prior to getting married in Maryland.
(Postnuptial agreements do the same, except after a marriage has been filed with the state.)
Prenuptial agreements can save divorcing couples a ton of money and time. After all, prenuptial agreements already establish mutual agreements on what happens during a divorce – the same thing others spend months and years figuring out as part of marital separation agreements.
And, prenuptial agreements don’t make divorce any more likely to occur, though people worry their partner may doubt their dedication to the relationship if they request one.
Why Should I Get A Prenup?
Post- and prenuptial agreements have become increasingly more common over the past few years. Their practicality seems to outweigh possible perception problems between partners.
For example, the average age of marriage in Maryland has slowly increased over the last few decades. In 2019, the average age for men to get married was about 30 and about 29 for women.
That trend means that many people have already established their careers and acquired valuable assets such as businesses or homes by the time they get married. For these older individuals, a prenuptial agreement has a real, practical value in establishing who owns what before (or even during) a marriage.
In other situations, individuals simply want to make sure that what they have and will continue to work towards for their entire lives will not be lost down the road in a divorce.
Prenuptial agreements also help set expectations for the future relationship. The couple may not own property or have children at the time of signing, but considering these future possibilities – as well as how to address them if the relationship dissolves – can bring peace of mind to many.
Finally, prenuptial agreements can have practical benefits for marriages that don’t end in divorce. Money is one of the most common causes of disagreements in marriage. A prenuptial agreement detailing any future monies can help stop future fights before they begin.
Exactly What Can A Prenup In Maryland Cover?
Prenuptial agreements can include just about anything you can think of – even who gets the family pets – in the event of a divorce.
That said, many Maryland prenups include:
- Who exactly owns which pieces of property within the marriage, and what property would specifically be excluded in divorce proceedings
- How current or future business ownership will be handled during the marriage and possible divorce
- Whether and how much alimony would get paid – and by whom
- Whether a spouse’s 401(k) and other retirement accounts would be held separate from property division considerations
- What happens to future life insurance, inheritances, and other windfalls
Neither child support nor custody cannot be negotiated and established as part of a prenup for two reasons.
- Child support is not paid to a parent, but to the child in question. Therefore, a parent cannot waive their child’s right to support payments as part of a prenuptial agreement contract.
- Life circumstances can and do change between signing a prenuptial agreement and negotiating a divorce. The courts considers what would be in the “child’s best interest” when determining custody and support orders at the time of the divorce. Such evaluations are not possible when signing prenuptial agreements.
Other unenforceable clauses in Maryland prenup contracts include:
- An obligation to divorce after marriage
- Penalties for “alienation of affections”
- An obligation to marry after signing the prenup – unless the individual wanting to enforce the agreement is pregnant
How Can I Get A Maryland Prenup?
Maryland law does not specifically cover prenuptial agreements. Therefore, a prenup is effectively a contract between both parties.
Contracts are basically a promise between two parties that can be enforced by a court of law. A prenup contract can be as simple as a conversation: “If we ever divorce, we’re selling the house and splitting the money, right?”
Of course, whether that contract will hold up when the time comes is another matter entirely.
Maryland contract law can cover both verbal contracts – like the above example – and written ones. It’s worlds easier to get a court to enforce a written contract. A lawyer can help write up a valid prenup contract. Each party should have their own legal representation to avoid conflict of interest.
For most prenup contracts to be enforced by Maryland courts, there should be:
- Agreement between the parties that they understand and accept the terms as outlined in the contract, often proven by dated and witnessed signatures;
- Competency of all parties to agree to the contract of their own free will, with the mental capacity to do so;
- No illegal or otherwise unenforceable clauses in the contract, such as a promise to split property that neither party legally owns; and
- Some sort of “consideration” granted in return for the contract. This could be monies paid from one party to another in exchange for their agreement, or a mutual decision to not dispute the agreement in court.
Are All Prenups Valid And Enforceable In Maryland?
Maryland does not automatically ratify and enforce all prenuptial agreements, particularly those from other states. Therefore, if you have a prenup from Virginia, then it may not be automatically valid or enforceable in Maryland.
A prenup is unlike a divorce decree in that it is a contract between two parties – not a Maryland court decree. Therefore, Maryland courts only enforce those prenup contracts that are deemed valid by state contract law.
Either party who signed the prenup can challenge its legality in the event of:
- Fraud, such as one party hiding assets from the other to avoid inclusion
- Duress, coercion, or undue influence that impacted the party’s ability to sign the contract of their own free will, such as limiting the time they had to review before signing
- Incompetence, which could mean the signatory did not have the mental capacity to agree to such a contract
- Mistake, such as the party thought they were signing another document and not an official prenuptial agreement contract
- Generally illegal provisions that wouldn’t be enforceable in any Maryland contract
- “Unconscionability,” which may indicate that the agreement is so unfair that even if you both thought it was legal at the time, a Maryland court may choose not to enforce the requirements
Those situations aside, most prenups are generally considered enforceable contracts in Maryland.
A divorce lawyer with prenup experience in Maryland would be able to tell you if your agreement is enforceable by the courts, if push comes to shove.
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