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Prenuptial Agreements: A Comprehensive Guide for All Couples

Learn everything you need to know about prenuptial agreements, how they protect your assets, and why they're valuable for couples with children, young couples, blended families, and those with significant assets.

Introduction

A prenuptial agreement (commonly called a 'prenup') is a legal contract created by two people before they marry that typically outlines how assets and debts will be divided in the event of divorce or death. While often associated with wealthy individuals protecting their fortunes, prenups serve many practical purposes for couples across various life situations. This document can help clarify financial rights and responsibilities, protect family businesses, shield one spouse from the other's debts, and establish clear guidelines for property division. Whether you're entering marriage with children from previous relationships, significant assets, or simply want clarity about your financial future together, understanding prenuptial agreements is an important step in building a secure foundation for your marriage.

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Key Things to Know

  1. 1

    Prenuptial agreements must be executed well before the wedding (at least 30 days is recommended) to avoid claims of coercion or duress.

  2. 2

    Both parties must provide complete and honest financial disclosure for the agreement to be valid.

  3. 3

    Each person should have their own independent legal counsel review the agreement before signing.

  4. 4

    Prenups cannot determine child custody or child support amounts, as these must be decided based on the best interests of the child at the time of divorce.

  5. 5

    The agreement should be reviewed and potentially updated after major life events such as the birth of children, significant inheritance, or substantial changes in financial circumstances.

  6. 6

    State laws vary regarding prenuptial agreements, so it's essential to work with an attorney familiar with the laws in your jurisdiction.

  7. 7

    A well-crafted prenup promotes financial transparency and communication, which can strengthen your relationship rather than undermine it.

  8. 8

    For blended families, a prenuptial agreement should work in conjunction with your estate plan to ensure children from previous relationships are protected.

Key decisions before you file

Before you file a Prenuptial Agreement in Maryland, a few decisions shape the document: which option to choose and what each one means. The Prenuptial Agreement guide walks through them.

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Maryland Requirements for Prenuptial Agreement

  • Voluntary Execution (Maryland Family Law Code § 8-205)

    The agreement must be executed voluntarily without any fraud, duress, or undue influence. Both parties must enter into the agreement of their own free will.

  • Full and Fair Disclosure (Cannon v. Cannon, 384 Md. 537 (2005))

    Both parties must provide full and fair disclosure of all assets, income, and liabilities prior to execution of the agreement. Failure to disclose material information may render the agreement unenforceable.

  • Independent Legal Representation (Harbom v. Harbom, 134 Md. App. 430 (2000))

    Each party should have the opportunity to consult with independent legal counsel of their own choosing before signing the agreement. While not absolutely required, lack of independent counsel may be a factor in determining enforceability.

  • Unconscionability (Maryland Family Law Code § 8-205)

    The agreement must not be unconscionable at the time of execution. Courts may refuse to enforce provisions that are so one-sided as to be unfair and oppressive.

  • Alimony Waiver Provisions (Maryland Family Law Code § 8-103)

    Provisions waiving or limiting alimony must be fair and reasonable at the time of execution and not unconscionable at the time of enforcement. Maryland courts may still review these provisions for fairness.

  • Child Support Limitations (Maryland Family Law Code § 8-103(c))

    Provisions attempting to waive or limit child support obligations are unenforceable as against public policy. The right to child support belongs to the child, not the parents.

  • Child Custody Provisions (Maryland Family Law Code § 5-203)

    Provisions regarding child custody and visitation are not binding on the court. Courts will always determine custody based on the best interests of the child at the time of divorce.

  • Marital Property Definition (Maryland Family Law Code § 8-201)

    The agreement should clearly define what constitutes marital property and separate property, consistent with Maryland law which defines marital property as property acquired during marriage, regardless of title.

  • Retirement Benefits (Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1056(d)(3))

    Provisions regarding retirement benefits must comply with federal ERISA requirements and may require a Qualified Domestic Relations Order (QDRO) for enforcement.

  • Estate Rights Waiver (Maryland Estates and Trusts Code § 3-203)

    Provisions waiving spousal rights to elective share, intestate succession, or other estate rights must be clear and unambiguous. Maryland allows such waivers if properly executed.

  • Sunset Provisions (Stewart v. Stewart, 214 Md. App. 458 (2013))

    The agreement may include sunset provisions that cause certain terms to expire after a specified period of marriage. These provisions must be clearly defined and reasonable.

  • Choice of Law (American Motorists Ins. Co. v. ARTRA Group, Inc., 338 Md. 560 (1995))

    The agreement should specify which state's law will govern its interpretation and enforcement, particularly if the couple may relocate or has connections to multiple states.

  • Modification and Amendment (Maryland Rule 2-504.1)

    The agreement must specify the procedures for modification or amendment, typically requiring a written instrument signed by both parties. Oral modifications are generally not enforceable.

  • Integration Clause (Maslow v. Vanguri, 168 Md. App. 298 (2006))

    The agreement should contain an integration clause stating that it represents the entire agreement between the parties and supersedes all prior negotiations and understandings.

  • Severability (Maryland Commercial Law Code § 2-302)

    The agreement should include a severability clause providing that if any provision is found invalid or unenforceable, the remainder of the agreement will still be enforceable.

  • Financial Support During Marriage (Maryland Family Law Code § 2-202)

    Provisions regarding financial support during marriage must not violate Maryland's legal obligation of spouses to support each other during the marriage.

  • Debt Allocation (Maryland Family Law Code § 8-205(b))

    The agreement should address allocation of debts acquired before and during marriage, consistent with Maryland law on marital debt responsibility.

  • Business Interests Protection (Long v. Long, 129 Md. App. 554 (2000))

    Provisions protecting business interests must be specific and reasonable, particularly for family businesses or professional practices that may be subject to valuation disputes.

  • Tax Considerations (Internal Revenue Code § 1041)

    The agreement should address tax implications of property transfers and support payments, consistent with federal tax laws regarding alimony, property transfers, and filing status.

  • Execution Requirements (Maryland Real Property Article § 5-901)

    The agreement must be in writing and signed by both parties to be enforceable under Maryland's Statute of Frauds for agreements made in consideration of marriage.

Frequently Asked Questions