Pre-Nuptial Agreements in Maryland
A prenuptial agreement is a contract that future spouses execute before they get married. Most prenuptial agreements protect one spouse’s assets and property from the other spouse. If the spouses ever get divorced, a valid prenuptial agreement overrides the usual rules concerning property division.
Entering into a Valid Pre-Nuptial Agreement(1) For a prenuptial agreement to be valid, the two parties must be competent to enter into a legal contract and must knowingly and willfully enter into the agreement. If each party has his/her own legal counsel, there is a higher level of assurance that each party understood the terms of the agreement and entered into it knowingly. (2) Neither spouse can exercise undue pressure or coercion. For example, if the wedding is days away and the guests are arriving and all of the wedding payments are non-refundable, it would be considered coercion if one spouse presented the other spouse with a prenuptial agreement and demanded signature in order for the wedding to proceed. (3) The parties cannot misrepresent their respective financial circumstances to one another nor engage in any fraud in the preparation or negotiation of the agreement. Normally, the parties provide "disclosure" of their assets, liabilities and income to each other as a written attachment to the agreement.
Issues That Can Be Included in a Pre-Nuptial AgreementThe parties may include the following issues in a prenuptial agreement: (1) What property will be considered "marital" and what property will be considered "non-marital"; (2) How marital property will be divided between the spouses in the event that the marriage terminates; (3) How much each party will contribute to household or family expenses during the marriage; (4) Whether either party will be entitled to any spousal support if the marriage terminates and how much support will be paid and for how long. Likewise, the parties can waive any future claim to spousal support or alimony.
Issues That Cannot Be Included in a Pre-Nuptial Agreement(1) The parties cannot decide child custody and visitation in the event of the termination of the marriage. The best interests of any current or future children of the parties will have to be determined at the time of the termination of the marriage based on the circumstances that exist at that time. (2) The parties cannot determine child support in the event of the termination of the marriage. The court has a set of rules for determining support of children, and the parties must adhere to those rules and calculations. The parties do not have the ability to waive support for their children. (3) The parties cannot execute a final waiver of or rights to retirement assets prior to the marriage. These terms may be contained in the prenuptial agreement, but those terms need to be reaffirmed or ratified after the parties are actually married.
Incorporation of Pre-Nuptial Agreement in the DivorceUpon the termination of the marriage, if the court upholds the prenuptial agreement, then all of the terms and conditions contained in the prenuptial agreement are incorporated into the final Judgment granting the parties a divorce. If the court does not uphold the prenuptial agreement, then the parties will need to proceed with litigation and/or settlement negotiations in order to resolve all of those issues.