Amidst the joy and activity of planning a wedding, couples confront whether to enter into a prenuptial agreement. It can feel cold and transactional to create a contract, but prenups offer many benefits, particularly to couples entering a second marriage. It is well worth exploring the option. Here are some issues to take into account:
What Makes a Prenup Legal in Maryland?
Maryland has liberal rules allowing people to enter into prenuptial agreements, also known as premarital agreements or antenuptial agreements. Unlike some jurisdictions that set time limits on when a prenup needs to be signed in relation to the wedding date, Maryland only limits prenups for these reasons:
1. Prenups cannot impact child custody or support
2. Unless a woman is pregnant, a prenup that promises to marry is unenforceable
3. A prenup cannot agree before marriage to divorce afterward
4. “Alienation of affections” provisions will not be enforced
5. Each party has to have the opportunity to consult with an attorney (though they may not choose to do so)
6. Each party has to make full financial disclosures or explicitly waive this right
Prenups need to be in writing and signed by both people in the couple. While not required, it is a good idea to have notarized signatures. In all other respects, Maryland allows couples to reach whatever agreements about their marital life they choose. Of course, courts will assess prenups to be certain that there was no fraud, duress, or other elements that might make the contract unfair as a matter of law. Since these are questions developed by the courts in prior cases, it is worth conferring with an experienced family law attorney to ensure the terms will be enforceable.
What Should be in a Prenup?
Most couples cover a range of financial issues in their prenup, often including the allocation of assets and responsibilities in the event of a divorce. These can be topics like identifying separate property and agreeing on the treatment of that property. For example, a person might have a family home or business, and the prenup will agree that the other person will not make a claim on these in the event of a divorce. Prenups will also specify spousal support, and rights to income, debts, and assets accrued during the marriage. Another key topic is the treatment of children from a prior marriage in the event a spouse dies. Beyond the basics, couples include a whole range of topics in their prenups. These can include highly specific details like taking an annual vacation together or sending children to private school. For spouses where one spouse is the primary income earner, prenups can include financial allowances during the marriage or other provisions for care and support.
Talking to Your Partner About A Prenup
While there is no single way to approach the topic of a prenup with your partner, it is a good idea to broach the subject with an open mind and a willingness to listen. Rather than treating a prenup as an imposition or a cynical anticipation of the end of the relationship, it’s essential to focus on the benefits, which include the conversations that should happen as part of the process. These discussions allow the couple to explore their financial philosophies and expectations and ensure that inaccurate assumptions are dispelled before the marriage. They offer the opportunity to discuss the marriage concretely and provide a roadmap for success. Finally, while Maryland has one of the lowest divorce rates in the country, it is a sad truth that marriages don’t always work out, and talking about the rules of the road before getting married can prevent a lot of pain, expense, and heartache should a divorce occur.
Prenuptial Agreements aren’t a requirement for every couple, but it is worth conversing with one another to get clarity about critical topics that can strain the marriage. If you are considering a prenup, consult with a family law attorney to get some advice on what needs to be included for your particular situation and how to create an enforceable agreement.