Prenuptial Agreements in Maryland

coupleNow, right before the busy marriage season starts, is a good time to bring up this tough topic.

Nobody likes to think of divorce before a marriage. But face facts – 50% of marriages end up that way. It is a realistic possibility for anyone.

So. Got your prenuptial agreement?

People think of marriage as a union of two souls. And it most definitely is.

But a marriage is more than that in the eyes of the law. Since we are divorce lawyers, we need to remind you of the business relationship aspects of marriage.

And a prenuptial agreement is, in the right circumstances, the smartest “business” thing you can do before saying “I do.” In this post we tell you exactly when you need one.

This isn’t romantic, but it is important. Don’t go into something as important as marriage without knowing exactly what you are getting into – in a legal sense anyway.

The Business Aspects of Marriage

Maryland law specifically recognizes marriage is a contract between two individuals. It is a special kind of contract, but it is a contract subject to legal requirements like any other contract.

When you get a divorce in Maryland, you are essentially breaking a contract. Therefore, as divorce lawyers, we are always looking at the business aspects of a marriage – both before it is started and after it is being dissolved.

People who marry young probably come into a marriage without many financial assets. In that case, your assets should have grown right along with your marriage. If you do have to get a divorce, most of the marital assets were gathered during that time of the marriage, and are therefore subject to division as marital property in a future Maryland divorce.

To read more about marital property in Maryland how that works in a divorce, read our Free Legal Guide to Divorce in Maryland.

But if you begin a marriage while already in possession of significant financial assets, your case is different. In that situation, it would be wise to take steps to protect your financial assets from the possibility of divorce proceedings.

It is true that state law generally protects assets you bring into a marriage. In a Maryland divorce, only the “marital property” (property acquired during the marriage) is subject to division.

However, if you have assets to protect, you should not rely on some Judge’s interpretation of future Maryland divorce law on the subject. What if the law changes? What if your assets get comingled and are hard to separate? What if they get bought and sold?

Don’t take a chance. You should get a prenup to be sure you are covered. A Maryland divorce lawyer can help you here.

Why & When to Get a Prenup in Maryland

The number one reason is where one spouse brings assets into a marriage and wants to protect them from the possibility of losing those assets in a divorce. That situation is obvious.

But there are many other no so obvious situations where a prenup makes a lot of sense. Here are some other situations in which you should consider a prenuptial agreement:

Children from a Previous Marriage: A prenup can protect inheritance rights of your children from a previous marriage. What if you die and your new spouse inherits your assets, and then he or she dies? Those assets will be distributed according to your spouse’s will. They may not go to your intended heirs.

Yes, this can be taken care of by careful estate planning, but those plans be changed at any time. A prenup requires your consent.

We have seen the painful cases where someone accidentally disinherits their children in this manner. Don’t let it happen to you. If you have children from a prior marriage, you should get a prenup.

Protecting a Business: A prenup can protect a small or family business, so the divorcing spouse will not be able to take an interest in the business. Think about the chaos from having to make business decisions with your spouse in the midst of a divorce? If you have a small business or a family business, you need a prenup before you get married.

Shielding You From Debts: This is the reverse of the usual situation. What if one spouse has a lot of debt and the other spouse wants to avoid getting trapped by it?

Sure this can be accomplished by carefully keeping your finances in order, and not comingling them. But that is hard to do after a marriage. Sometimes it is just impractical.

A prenup can assure that partner A’s debts don’t every become partner B’s problem after a divorce.

Lifestyle Issues: This is a more common reason for getting prenups these days. People want to make sure that children will be raised a certain way in case of divorce. You see this in certain celebrity divorces. A prenup can address thorny lifestyle issues after a divorce, such as:

  • How will the children be raised?
  • Where will the children go to school?
  • What religion will the children follow?
  • There is no end to the things you can probably think of here.

What Do I Need for a Valid Maryland Prenuptial Agreement?

Maryland law does recognize the validity of prenuptial agreements. Courts will generally enforce the terms in a divorce as long as they are fair, and were negotiated in fairness.

A prenup is really just a contract. It has all the same formalities as any other contract, with some twists.

One twist is the need for two lawyers. Each party will need their own separate divorce lawyer in Maryland for negotiations. If not, the prenup is subject to attack later.

(And by the way – do NOT try to do this on your own or you are wasting your time. A prenup agreement without good legal advice is likely to be worthless if it comes under attack in divorce court. It would be very easy for the spouse without assets to claim they didn’t know what they were doing. This is not DIY legal!)

Another twist is that the spouse with assets must make a full disclosure of those assets before the divorce. If you hide assets when negotiating a prenup, the court will not likely enforce it.

(And to be honest, if you are hiding assets from your spouse before a marriage you may want to rethink this whole marriage thing anyway!)

Conclusion & Next Steps

Because divorce is so common in Maryland, it is only wise to consider a prenuptial agreement if it fits your situation. If you have one of the situations listed above, you should consider seeing a Maryland attorney for advice on a prenup before you say “I do.”

Want to know more? Discover what you need to know about Divorce in Maryland. Click here to see our Free Legal Guide to Divorce and get answers to your questions today. Know your options. Be informed. Protect yourself.

Need a Maryland Divorce attorney? Please contact us for a consultation today if you need an experienced Maryland divorce lawyer for your divorce case.

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Andrews, Bongar, Gormley & Clagett is one of the oldest and largest law firms in Southern Maryland. We have been serving clients here for over 50 years. 

 

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