In Maryland, couples who plan on marrying have the right to draft and sign a prenuptial agreement that specifically lays out how certain assets will be handled and what assets a spouse may or may not be able to claim should the couple get divorced. These agreements are seen as enforceable contracts in the state, but unlike many other states, there are no specific laws governing the nature or enforcement of prenuptial agreements.
Instead of using statutes passed by the Maryland General Assembly, the state relies on past court decisions and its approach to contract law. Generally speaking, most prenuptial agreements are enforceable as long as they are not seen as unconscionable (extremely unfair), or a spouse cannot claim they were forced to sign the agreement.
To protect themselves from entering into an unfair prenuptial arrangement, couples who intend on marrying would likely find it in their own best interests to consult with an accountant and a Maryland family law attorney. They can use the following steps to enter into their premarital agreement in a way that’s fair to both parties and that is likely to be upheld under scrutiny by Maryland’s courts.
Step 1: Have an Open Discussion With Your Partner Regarding Your Feelings About a Prenuptial Agreement
Couples who openly discuss issues rather than try and skirt around them typically enjoy a healthier, more fulfilling relationship. This maxim naturally applies to couples who are considering completing a prenuptial agreement.
“Springing” a prenup on your partner is likely to be seen as a nasty surprise and one the intended spouse will be unprepared to handle. Actions like this are why many associate prenuptial agreements in Maryland with “poor taste” or something that can doom a coupled before they ever set foot on the altar.
To prevent this sort of discomfort or any animosity, start the conversation regarding a prenup with your partner early. Openly discuss your concerns, and allow the partner to voice their own. Make your personal goals plain. You don’t have to outright disclose your financial situation down to the decimal at this point, but your intended spouse should be aware of why you feel a prenuptial agreement may be appropriate and how it can mutually benefit each party.
Step 2: Review Your Finances With an Accountant and a Maryland Family Law Attorney
Before you begin drafting your agreement, you should know with great specificity what assets would fall under the agreement’s terms and what the legal consequences might typically be for those assets should you and your future spouse get divorced.
To get this level of clarity, speak with a qualified accountant and a Maryland family law expert. Together, they can advise you as to your best strategy given your goals and then help you begin drafting an agreement that is fair and likely to be enforced under the state’s approach to contract law.
Step 3: Put Your Agreement in Writing, Give Your Intended Spouse Time to Review It, And Have Both Parties Sign It
Once you have laid out the groundwork for your prenuptial agreement in Maryland, you should draft a document in the model of a business contract. This document should generally disclose the assets under consideration, and it should include nearly all the premarital assets that someone might have.
Note that you don’t have to put a specific number on the assets in question as long as the contract openly and honestly discloses all or most of them. Maryland’s 2013 Court of Special Appeals case Stewart v. Stewart upheld a prenuptial agreement despite the fact that a retirement account wasn’t listed. That said, do not attempt to deceive the other party or misrepresent your holdings, as this may cause the prenuptial agreement to be seen as unenforceable.
Allow your partner ample time to review the document with their own legal and financial experts, and then have both of you sign the document — preferably in front of a legal witness who can attest that neither party was under duress or under the influence of intoxicants.
With these three steps taken, you will hopefully have an enforceable contract in place that is fair to both parties and that will put you on a path to a healthy future marriage.