A prenuptial agreement is an agreement between persons about to marry that is made before a ceremony is performed and in anticipation of marriage. A prenuptial agreement is sometimes called an antenuptial agreement, prenuptial contract, premarital agreement, or "prenup".
No laws specifically address prenuptial agreements in Maryland. Instead, contract law governs the prenuptial agreements. Through a prenuptial agreement, 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.
There are limitations:
- A couple may not validly contract before marriage to divorce afterward.
- Prenuptial agreements can't affect child support or child custody.
- A written promise to marry will not be enforced, unless the woman is pregnant.
- In Maryland, there is also no legal action for alienation of affections. Read the Law: MD Code Family Law § 3-103
Valid prenuptial contracts remain enforceable after divorce. The prenuptial agreement 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.
When creating the prenuptial agreement, it is a good idea for both parties to be represented by independent counsel. Even if the parties draft their own contract, it is a good idea to consult with a lawyer on the language that should be used in the document.
Either spouse can challenge a prenuptial agreement if there is fraud, duress, coercion, mistake, undue influence, incompetence, or unconscionability (grossly unfair) involved. However, it is generally difficult to challenge a prenuptial agreement, and the burden is on the spouse challenging the agreement's validity to prove to the court that the contract should be unenforceable. When reviewing a prenuptial agreement, the courts look to see if the agreement is grossly unfair or if the parties were dishonest in dealing with each other. The courts also look to see that both parties completely disclosed all assets and property to each other prior to the parties signing the agreement. Full disclosure between the parties is essential to a fair agreement.