Maryland Prenuptial & Postnuptial Agreements: What Couples Often Overlook

Prenuptial and postnuptial agreements can be very useful, but they do come with pitfalls. Overlooking key issues can lead to disputes or enforcement problems down the road.

By learning more about the common pitfalls of prenuptial and postnuptial agreements, and speaking with a Maryland prenuptial/postnuptial agreement attorney, you can make more informed decisions before issues arise.

What is a prenuptial agreement?

A prenuptial agreement is a legal document that two spouses sign before their marriage. This agreement outlines how certain issues will be handled in the event of a divorce. As for what to include in a prenup, Maryland law generally allows a prenup to define:

• How a couple’s assets and debts will be divided.
• Whether either spouse will waive inheritance or elective-share rights for specific assets.
• How much spousal support a spouse will provide.

Couples often choose to develop a prenuptial agreement for the following reasons:

• To protect their assets.
• To reduce the likelihood of prolonged disputes during a divorce.
• To protect one another from debt and debt-related matters.
• To avoid potential disputes over assets and inheritance, among other things.
• To protect a business that one spouse owns or manages.

What is a postnuptial agreement?

A postnuptial agreement is a legal document that two spouses sign during their marriage that outlines how certain issues will be handled in the event of divorce. Unlike a prenuptial agreement, a postnuptial agreement is signed after a couple is married.

You can use a Maryland postnuptial agreement to sort out the same issues as a prenuptial agreement. This can be useful if you wanted to enter a prenuptial agreement, but were unable to do so.

What are the common pitfalls of prenuptial agreements?

A prenuptial agreement can prove very useful. However, common pitfalls include:

• A prenuptial agreement can be challenged in court, and if successful, the terms could be declared invalid.
• If a spouse fails to disclose all of their assets and debts, the prenuptial agreement they signed/their spouse signed could be made invalid.
• Every prenuptial agreement must be signed voluntarily, and any allegation of coercion or duress can result in the entire agreement being declared invalid.
• Prenuptial agreements are considered invalid if the person who signed it was unable to understand the agreement at the time of signing; this could be due to intoxication or illness, among other possibilities.
• A court may invalidate a prenuptial agreement if it was procured through fraud, duress, coercion, or without full and fair disclosure.
• Courts are not bound by child custody or child support provisions in a prenuptial agreement and will decide those issues based on the child’s best interests.
• Being asked to sign a prenuptial agreement too close to the wedding date may constitute coercion or duress. However, Maryland courts consider all the circumstances to determine whether the agreement was signed voluntarily; timing alone does not automatically render a prenuptial agreement invalid.
• A prenuptial agreement must be in writing, and the documentation underlying it must be legally valid. If it isn’t in writing or doesn’t meet general contract requirements, it may be unenforceable.

How are postnuptial agreements different?

Postnuptial agreements are similar to prenuptial agreements. The state of Maryland may scrutinize both for fairness, full disclosure, and the absence of fraud, duress, or undue influence. However, a couple of unique differences include:

• If a couple’s finances change significantly, they may mutually agree to modify their postnuptial agreement, provided the updated agreement meets enforceability requirements.
• Some postnuptial agreements fail to account for significant changes within the marriage, such as the birth of a child. If so, certain parts of a postnuptial agreement may be disregarded because the court must act in the child’s best interests.

What should you do?

If you would like to develop a prenuptial/postnuptial agreement that satisfies your wishes and will be enforced in the event of a divorce, you may want to do the following:

• Work with a Maryland prenuptial/postnuptial agreement attorney who knows how to develop valid prenuptial/postnuptial agreements.
• Clarify your wishes for this prenuptial/postnuptial agreement and share them with your attorney; they will tell you if these wishes are likely to be enforced.
• Discuss the prenuptial/postnuptial agreement with your spouse and make sure they know about the terms you are seeking.
• Talk to your future or current spouse and disclose your assets and debts; failure to do so can result in your prenuptial/postnuptial agreement being invalidated.
• Have your attorney draft the prenuptial/postnuptial agreement you are seeking; drafting it yourself can lead to issues, and an attorney knows how to draft an agreement that is likely enforceable.
• Sign the prenuptial or postnuptial agreement in front of your attorney, which may help support enforceability.

Each example above can help you develop a prenuptial/postnuptial agreement that will likely be enforceable in the event of divorce.

Work with a Maryland prenuptial/postnuptial agreement attorney

A prenuptial/postnuptial agreement can be used to protect your assets in the event of a divorce. Contact McCabe Russell Divorce and Child Custody Lawyers today. Complete the contact form to speak with a Maryland prenuptial/postnuptial agreement attorney. We are ready to help you.