The most simple answer is no.
In Howard County divorces, as well as other jurisdictions across Maryland, prenuptial agreements are contracts, and circuit court judges will enforce them as contracts. Sometimes, judges will invalidate portions or all of the agreement for a variety of reasons.
People who believe a prenuptial agreement will ruin their marriage tend to not enter into them. But not always.
When I see a new client who is getting divorced and feels bound by an unfair prenuptial agreement, usually that person had a difficult decision to weigh-do I marry the love of my life and trust that the prenuptial agreement will never come into play, or do I not get married? That is certainly a tough decision.
I enjoy meeting with the new client weighing that issue, so that I can provide a proper and thorough education, as well as the do’s and don’ts of prenuptial agreements.
Prenuptial Agreements are also referred to as premarital agreements, antenuptial agreements or marital agreements. They are private agreements between a couple contemplating marriage. In Maryland, although not in all states, same gender should not be an impediment to entering into such an agreement.
You and your spouse may also enter into a private agreement after the marriage that is called a postnuptial agreement. Again, there are rules and regulations for their future enforceability.
What goes into a prenuptial agreement? The answer is pretty much anything the two of you agree upon. This could include provisions determining how the assets owned by each of you prior to the marriage, as well as the assets acquired during your marriage, will be treated in the event of a divorce. You can also include provisions determining how assets will be handled in the event of the death of either of you or your spouse. You may wish to include provisions for determining how the income and earnings of each of you are treated during the marriage. It is not unusual to include a provision to determine whether and to what extent a spouse is entitled to alimony or spousal support if there is a divorce. That could include an alimony waiver, or it could be a limitation of the amount and duration of alimony. Separating assets by title can be a powerful tool to maintain your own retirement assets, as well as real property owned by each person.
I will often add provisions into a prenuptial agreement that will limit, streamline or otherwise affect the power of a court upon separation and divorce to save the parties the tens of thousands of dollars in attorneys’ fees that could otherwise accrue with a high asset divorce.
So, you ask why I have excluded custody, visitation and child support from the prenuptial agreement. These provisions do not belong in such an agreement because each issue must be determined based upon the best interests of the children at the time of the divorce.
You do need to know that he laws regarding prenuptial agreements can vary from state to state. If you have a prenuptial agreement from another state and then you move to Maryland, it makes sense to consult with a Maryland attorney. The same is true if your agreement was drafted in Maryland, and then you move to another state.
There are several ways that a prenuptial agreement may be challenged. These include lack of voluntariness, unconscionability, but most importantly, a failure to disclose your assets. It is very expensive to challenge the validity of a prenuptial agreement, although under the right circumstances, if could be worth it. You do need to be aware that some prenuptial agreements contain language that state you will be required to pay the other spouse’s attorney’s fees if you challenge the validity of the prenuptial agreement, and your challenge is not successful.
The top and bottom line of prenuptial agreements is that before you act, get yourself to an attorney. Not all divorce and family law attorneys draft or litigate prenuptial agreements, as it is a highly complex area of law. In Howard County and throughout the State of Maryland, I advise and represent litigants often with issues involving both prenuptial and postnuptial agreements, as well as drafting them. Prenuptial agreements are not just for high asset cases, although many of them are. The best way to get more information is to give me a call.
