Prenuptial Agreements in Maryland

Learn more about prenuptial agreements in Maryland.

Years ago, prenuptial agreements had the bad reputation of being unromantic at best and tempting divorce at worst. In today’s age, however, many couples consider prenuptial agreements to be practical tools bringing predictability to their financial futures. Statistics show that they don’t make divorce any more likely, and spouses can negotiate their financial destiny in case of the unfortunate event of divorce.

States have varying rules regarding prenuptial agreements. This article will explain Maryland’s definition of a prenuptial agreement, what it may include, and what makes the agreement enforceable.

What Is a Prenuptial Agreement?

Prenuptial agreements, also called “antenuptial” or “premarital” agreements in Maryland, are written contracts between prospective spouses where they agree how certain issues, such as property division and alimony, will be decided if they happen to divorce. The contract is basically an exchange of certain financial terms for the act of marriage itself.

Who Should Get a Prenuptial Agreement?

Decades ago, the primary users of prenuptial agreements were very wealthy individuals looking to protect their assets. Today, however, couples of all income levels can have reasons to enter into these agreements.

You may want to have a prenuptial agreement to protect anything from a large family business to a small family heirloom. You can protect any asset or business interest you have at the time of the marriage, or even agree how certain types of assets or property will be divided that you acquire in the future. If you have children from a previous relationship, you can use a prenuptial agreement to protect their future inheritance. Many couples agree that one spouse will be the primary breadwinner while the other spouse will shoulder the childcare and household duties, and want to pre-determine alimony in case they divorce. Finally, many people believe that negotiating the terms of a divorce during a time when the couple gets along is much easier (and less expensive) than fighting over assets during a divorce. A prenuptial agreement can help you avoid a lot of disputes if the marriage falls apart.

What Issues Can a Prenuptial Agreement Cover?

In Maryland, a prenuptial agreement can cover alimony, property rights, and personal rights. Spouses can agree to financial rights and obligations that exist both at the time of marriage, as well as into the future.

Marrying couples often use prenuptial agreements to determine the following issues:

  • how they want to divide their assets and debts in the event of divorce
  • each spouse’s ability to manage, sell, buy, or otherwise control property during the marriage
  • whether one spouse will pay the other alimony after a separation or divorce, including the amount and duration
  • whether each spouse’s retirement accounts are divided or kept separate
  • how to distribute the proceeds of any life insurance policies, and
  • whether the spouses should write wills to carry out the terms of the agreement

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

Prenuptial agreements can’t affect child support or child custody. Child support is a child’s right that parents can’t negotiate away in a contract. Courts base child support on each parent’s ability to pay and the child’s needs, determinations that can only be made when the parents split, never before. Similarly, courts determine child custody based on what is in each child’s best interests at the time the parents separate. Parents can always agree on child support and child custody at the time of their divorce or separation, subject to a judge’s approval.

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

While many states use the Uniform Prenuptial Agreement Act, a set of rules courts used to determine a prenuptial agreement’s validity, Maryland is not one of those states. In general, a prenuptial agreement’s enforceability is determined in the same way as all other contracts in Maryland.

A prenuptial agreement must be in writing, and each spouse must sign the document. Each spouse should give the other spouse a full disclosure of his or her assets and debts, unless a spouse waives the right to receive that information. The agreement takes effect when the couple marries.

Either spouse can challenge the validity of a prenuptial agreement whenever one of the following factors are present:

  • fraud
  • duress
  • coercion
  • mistake
  • undue influence
  • incompetence, or
  • unconscionability (extraordinarily unfair).

Courts find most prenuptial agreements to be enforceable, so it's difficult to prove a prenup contract should be thrown out. Also, the spouse who is challenging the agreement’s validity has the burden to prove that the contract is unenforceable.

A court could find a prenuptial agreement unenforceable for fraud if, for example, a husband hid assets from his wife when signing the agreement. If the wife didn’t know about her husband’s assets when she signed the agreement, then she wouldn’t be able to fairly determine what she might be giving up and whether the contract was fair. Spouses don’t have to trade detailed descriptions and values of every asset, but each should generally know the other’s financial situation.

A spouse challenging a prenuptial agreement based on duress or coercion must prove that the other spouse threatened physical or psychological harm if the challenging spouse didn’t sign the contract. Similarly, one spouse’s wrongful influence over the other to force a signature must be egregious for a judge to invalidate the agreement.

Small mistakes generally won’t affect a prenuptial agreement’s enforceability. Courts try to honor a couple’s intentions if they can figure them out from the documents and the spouses’ testimony. If there is a serious error that a judge can’t resolve, however, the agreement may be invalid.

Most adults are competent to sign agreements. However, if either spouse was incapable of understanding the agreement while signing it, the court may invalidate the agreement. A judge may consider spouses incompetent if they were mentally deficient, suffering from a mental illness, too young to sign a contract, or intoxicated at the time they signed the prenuptial agreement.

A court will only invalidate a prenuptial agreement for unconscionability if the contract is so unfair that it’s “shocking” to the court. For example, if the agreement would give one spouse millions of dollars while the other spouse would be forced to receive public assistance or welfare, the court may find that agreement is unconscionable.

The “gold standard” for ensuring your agreement is enforceable is to have an attorney prepare the prenuptial agreement and have an accountant create certified personal financial statements for each spouse to share and attach to the agreement prior to signing.

Courts won’t enforce a prenuptial agreement when the marriage has been annulled or voided, unless it’s necessary to avoid some injustice.

Any amendments to a prenuptial agreement must be in writing and signed by both spouses.

If you have additional questions about Maryland prenuptial agreements, contact a local family law attorney for advice.

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