Prenuptial Agreements in Maine

Will a Maine court enforce your prenuptial agreement?

In 2002, only 1% of marrying couples entered into prenuptial agreements. By 2010, that number had tripled. Once believed to be a tool for only the wealthy to protect their estates, today many more couples use prenuptial agreements to decide for themselves how their property should be divided if their marriage ends.

You may be getting married and wonder whether a prenuptial agreement would be right for your situation. This article explains what issues a Maine prenuptial agreement can cover and how to ensure your prenuptial agreement will be enforceable if you divorce.

What Is a Prenuptial Agreement?

A prenuptial agreement, also called a premarital agreement, is a contract between two people who are considering marriage. The agreement typically deals with the financial aspects of their marriage, including what will happen if they divorce or one spouse dies. A prenuptial agreement becomes effective only when the couple actually marries.

Who Should Get a Prenuptial Agreement?

Prenuptial agreements are no longer just for the wealthy; in fact, prenuptial agreements may benefit couples across the economic spectrum. While some people object to prenuptial agreements as being unromantic, or encouraging divorce, studies have shown that well-written agreements promote marital happiness by giving both spouses security regarding their financial future, which allows them to focus on other aspects of their relationship.

Those who have businesses, retirement accounts, or other property prior to getting married may want a prenuptial agreement to help protect these assets. Others may have children from a previous marriage and want a prenuptial agreement to protect those children’s inheritances. Some couples plan to have one spouse work while the other takes care of the children or household, and want to make sure both spouse’s financial interests are protected in case they divorce. Other couples may simply want to avoid future litigation by deciding beforehand how their property will be divided if the marriage fails, rather than leaving it up to the laws of their state.

What Issues Can a Prenuptial Agreement Cover?

In Maine, prenuptial agreements may cover a number of different issues, including:

  • each spouse’s rights and obligations to any of the property that either or both of them own
  • the spouses’ rights to buy, sell, use, or otherwise manage and control property
  • what happens to the couple's property upon separation, divorce, death, or some other event
  • whether one spouse will pay the other alimony, and if so, the amount and duration
  • whether either spouse must make a will to carry out the terms of the agreement
  • what happens to the death benefits from either spouse’s life insurance
  • which state’s law will be used to interpret the agreement
  • whether either spouse waives the rights to homestead allowance, exempt property, and family allowance, and
  • any other matter that doesn’t violate Maine law.

Can a Prenuptial Agreement Determine Child Custody and Child Support in Maine?

Maine law doesn’t allow a prenuptial agreement to determine either child custody or child support.

A child in Maine has the right to be financially supported by both parents. Neither parent may bargain away the child’s right to support from the other parent in a contract. That right belongs to the child, not the parent.

Courts determine child custody based on what is in the child’s best interest at the time parents separate. Parents may agree to a child custody arrangement, but only at the time they separate. And, their agreement must be approved by a court. Courts will disregard any child custody arrangement set out in a prenuptial agreement.

How Can I Ensure my Prenuptial Agreement Is Enforceable in Maine?

Maine is one of several states that has adopted the Uniform Premarital Agreement Act (UPAA), a set of requirements governing the enforceability of prenuptial agreements. In Maine, all premarital agreements must be in writing. Both spouses must sign the premarital agreement prior to the date of their marriage.

A married couple can modify or revoke their prenuptial agreement any time after they are married. If a married couple wants to modify or revoke the agreement, they must put that decision in writing, and both spouses must sign it.

When Will the Court Refuse to Enforce a Prenuptial Agreement?

Courts in Maine will enforce prenuptial agreements in most cases. The court will invalidate (throw out) a prenuptial agreement if:

  • a spouse did not sign the agreement voluntarily, or
  • the agreement was unconscionable (severely unfair) when it was signed, and:
    • a spouse failed to fully disclose his or her assets and debts,
    • the spouse to whom disclosure was not properly made did not waive the right to receive the other’s financial information, and
    • the spouse without the other’s financial information did not, and could not, have known the other’s assets and debts any other way.

The judge presiding over the couple’s divorce will decide whether a prenuptial agreement is unconscionable. Typically, however, courts only deem prenuptial agreements unconscionable in very extreme circumstances. That one spouse will receive most of the property under an agreement will not make the agreement unconscionable. If one spouse would have to receive public assistance because of their financial situation after the marriage, however, the court can order the other spouse to pay alimony, even if the agreement provided for no alimony.

If a marriage is void for some reason (for example, one spouse was already married to someone else or too young to be married), the court will throw out the prenuptial agreement unless it is necessary to prevent a serious injustice.

If you have other specific questions about prenuptial agreements in Maine, you should consult a Maine family law attorney.

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