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Prenuptial Agreements and Postnuptial Agreements: FAQs

Prenuptial Agreements Defined

A prenuptial agreement, also called a premarital agreement, is a legally binding document created with the rights and responsibilities of a couple in mind.  Prenuptial agreements are written before a couple marries, and may address a host of issues relevant to the couple.  Postnuptial agreements are entered into after the couple marries.

The purpose behind such agreements is to protect both parties, should the marriage fail in the future.  Couples are more willing to consider the other person, and more likely to seek a fair settlement, when they are discussing this at the beginning of the marriage, rather than the end.  Furthermore, a premarital agreement provides the peace of mind that comes with certainty.

What Do Prenuptial and Postnuptial Agreements Cover?

Title § 8 – 101 of Maryland’s Code allows couples to enter into a legally binding contractual agreement.  A prenuptial or postnuptial agreement addresses any or all of the following areas:

  • Alimony;
  • Support;
  • Property rights; and
  • Personal rights.

Some couples wish to address alimony or spousal support in their prenuptial agreement.  There are different types of alimony in Maryland.  If there is no agreement as to alimony, the court decides what alimony is appropriate.  The court also has the option of modifying an alimony agreement or an agreement for spousal support under certain circumstances.  Thus, it is important to have an attorney experienced in drafting such agreements to protect the parties.  Couples are also permitted to agree to no alimony, should the couple divorce.

One common topic in agreements is the division of property couples bring to the marriage.  Property includes grandma’s heirloom diamond, recreational vehicles, a townhome, or a vacation property.  If you or your spouse or fiancé has a tangible item, a prenuptial agreement or postnuptial agreement is a useful tool to protect ownership.  Rights to intellectual property, such as one party’s idea for a novel, are similarly subject to an agreement.  As people marry later in life, more couples enter the marriage with retirement accounts.  An agreement on the division of the retirement accounts of the couple is common.  Debts are another area couples may wish to address in prenuptial agreements.

These agreements may also address the right to control a given piece of property.   This includes the right to dispose of property, manage the property, mortgage the property, create a security interest in the property, encumber the property, consume the property, lease the property, exchange the property, abandon the property, use the property, or transfer the property.

Who Should Consider a Prenuptial Agreement?

While many people believe prenuptial agreements are only for the very wealthy, this is no longer the case.  The following list details some of the people who benefit from creating a premarital agreement or a post-marital agreement:

  • People getting married later in life;
  • People with children from another relationship, who want to protect the children’s inheritance;
  • Those who own property;
  • Those marrying someone with a significant amount of debt;
  • People who received, or expect to receive, a large inheritance;
  • Owners of businesses; or
  • Those who have retirement accounts.

Can One Agree to Child Support?

No.  Unlike alimony, child support is not negotiable by agreement of the adult parties.  The court will set child support consistent with Maryland’s child support laws.  For more information on child support in Maryland, check out our blog post on the issue.

Can You Negotiate Child Custody by Agreement?

Children belonging to one party to the marriage remain the children of that party only, unless the other party adopts the child.  Children of both parties are subject to the child custody laws of the state of Maryland.  Where the court believes it is in the best interests of the child, the court “may modify any provision” regarding “the care, custody, education, or support of any minor child.”

Can a Prenuptial Agreement or Postnuptial Agreement Contract Prohibit Divorce?

Typically, people may engage in contracts with each other on just about any issue.  One issue couples cannot contract, however, is the requirement to stay married “until death do you part.”  Maryland Code § 8 – 102 states a prenuptial agreement or post nuptial agreement “is not a bar to an action for absolute or limited divorce.”

What Are the Basic Requirements of Prenuptial or Postnuptial Agreement?

Agreements must be in writing.  Both parties must sign the agreement.  Both parties must be of sound mind at the time they enter into the agreement.  Neither party can sign the agreement “under duress.”  Instead, couples must sign the agreement freely and voluntarily.  Another critical requirement for a valid agreement is complete disclosure.   Parties must be completely honest about their assets and their debts.  A failure to provide complete disclosure could render the agreement invalid.

When Does a Premarital Agreement Become Valid?

Premarital, or prenuptial agreements become valid after a legal ceremony takes place.  The contract is conditioned on the marriage.  Therefore, it is not enforceable prior to the marriage.  Postnuptial agreements, on the other hand, are valid when both parties sign the document.

What If We Want to Change Our Agreement?

Like any contract, where the parties agree, modifications are permissible.  If you already have a prenuptial agreement, or a postnuptial agreement, and you wish to modify the agreement, this is easily done.

What Should I Do If I Want a Prenuptial Agreement or Postnuptial Agreement?

If you and your spouse or potential spouse want to enter into a postnuptial agreement or prenuptial agreement to protect yourselves in case of divorce, contact the Rockville family law attorneys at Fait & DiLima.  We are well versed in Maryland family law, and have experience writing both prenuptial and postnuptial agreements.  We also offer our services modifying previously written agreements.

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