Marital Agreements

Source: This section is drawn from the booklet entitled "Legal Rights in Marriage and Divorce in Maryland" produced by and available from The Women's Law Center.  Updated 3/30/01 .

Pre-nuptial Contracts
Separation Agreements
Revoking a Settlement Agreement
Enforcing a Settlement Agreement
Legal Advice
Negotiating your Marital Settlement Agreement        

Pre-nuptial Contracts

Agreements between persons about to marry made prior to the time a ceremony is performed and in anticipation of marriage are usually called pre-nuptial contracts. Through such contracts, the parties may agree on a multitude of issues, including:

• Property rights in property acquired before or during the marriage;

• Inheritance rights, including special provisions for children by a previous marriage or for any children born of the upcoming marriage; or,

• Alimony issues and/or monetary awards.

Generally, valid pre-nuptial contracts remain enforceable after divorce.  However, the contract must usually be in writing and signed by both parties. Verification of a signature by a notary public, although not required, would further validate the document in later court proceedings.  

In addition, both parties should be represented by independent counsel.  Even if the parties choose to draft their own contract, it is a good idea to consult with a lawyer on the type of language that should be used in the document. 

A couple may not validly contract before marriage to divorce afterward.  Nor will a written promise to marry be enforced, unless the woman is pregnant.  In Maryland, there is also no legal action for alienation of affections.

Separation Agreements  

A couple with little hope of reconciliation may privately enter into an oral or written agreement to live apart.  This is typically called a marital settlement agreement, separation agreement, or property settlement agreement. When the ground for divorce is voluntary separation, a separation agreement may be used as evidence to obtain the divorce.

A separation agreement should provide for the following:

• The care, custody and support of the children (see "Solutions For Sharing Kids");

• The amount of support one spouse will contribute to the other;

• Provisions for the continuation of health insurance benefits; and,

• The division of property while the husband and wife are living apart, including what will happen to the property upon divorce.

Such a separation agreement does not terminate the contract of marriage nor does it free the parties to remarry.  In addition, the parties are not free to have sexual relations with another person, as this constitutes adultery.

Revoking a Settlement Agreement

The separation agreement can be revoked by a second agreement in writing or simply by the parties living together again as husband and wife.  Living together does not automatically revoke the agreement; it is only evidence of an intention to revoke it.  

Enforcing a Settlement Agreement

If one party violates a settlement agreement, the other may bring a lawsuit for violation of the agreement, alleging a breach of contract. To ensure enforceability in the family courts, however, the parties should have the separation agreement incorporated, but not merged, into the divorce judgment.  

While the court will generally honor the parties' agreements as set forth in the separation agreement, the court may modify provisions affecting the care, custody, education, maintenance and support of the children in order to protect their best interests.

Legal Advice 

When a couple decides to separate, it is time to consult a lawyer.  This is particularly true where the parties own property and/or have children together. Even when no divorce is contemplated, a thorough understanding of their legal rights and responsibilities can be equally important.

Negotiating Your Marital Settlement Agreement

Although parties can draw up a separation agreement without the assistance of lawyers, it is often risky to do so.  Without knowledge of their legal rights, parties can draw up an agreement that can create problems in the future or fail to address all of the issues between them. 

If you have any question about your rights, you should consult your own attorney to determine whether your agreement is reasonable and fair.  Do not rely on the advice of your spouse’s attorney.  

A negotiated settlement can preclude a contested divorce hearing, but the agreement will still be examined by the court prior to the granting of a divorce judgment and may become part of the judgment.  A separation agreement greatly simplifies the court’s involvement, it does not eliminate it.

When only one party is represented by counsel, the party who is not represented by counsel should seek the advice of an attorney prior to finalizing the agreement.  There are instances where provisions of an agreement or the entire agreement might be voidable or unenforceable. 

Last date of legal review 01/18/08 (PLL/M.A.J.)

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