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Prenuptial 101: Sooner Really is Better than Later

Lerch Early Legal Update

People contemplating marriage often wonder whether they should have a prenuptial agreement. Maryland permits couples to enter into prenuptial agreements, which allow couples to agree before marriage on certain rights, support, and division of property in the event of separation or divorce. Maryland also allows couples to agree before marriage on certain rights and obligations upon death, even in an intact
marriage, that may differ from how they would otherwise be treated without a prenuptial agreement.

Prenuptial agreements can provide protection and clarity for the future. If you live in Maryland and are considering marriage, you should consider a prenuptial agreement, especially if:

  • You have substantial assets and property;
  • You own any portion of a business;
  • Your family has a business from which you receive any money or benefits, which you may inherit, or for which you may work;
  • You earn substantially more income than your fiancé/e;
  • You have children from a prior relationship;
  • You expect to receive a substantial inheritance; or
  • Your fiancé/e has substantial debt.

When entering into a prenuptial agreement, you are agreeing to your future rights during a time when your future circumstances are unknown. As a result, when one spouse later tries to enforce the prenuptial agreement, occasionally the other spouse will contest the validity of
that agreement.

There are several simple steps you can take to try to assure future enforceability of your prenuptial agreement:

Sign your prenuptial agreement far in advance of the wedding date. The further in advance of your wedding date you sign the prenuptial agreement, the less likely it will be that your spouse can claim that he or she was under duress in entering into the prenuptial agreement for fear that you would call off the wedding.

Have a full disclosure of finances before entering into a prenuptial agreement. You and your spouse-to-be should disclose to each other your complete financial pictures, including your incomes, assets, debts, and possible future inheritances. You should include language in the prenuptial agreement that you and your spouse had a full disclosure of all of your income and assets. You even should list your income and assets and identify which documents you shared with each other in preparation of the prenuptial agreement.

Make sure each side should be represented by an attorney in negotiating and entering into a prenuptial agreement. You and your spouse-to-be each should be represented by separate attorneys. You should include language in the prenuptial agreement that you and your spouse entered into the agreement freely and voluntarily, that the agreement is not as a result of duress, and that you each had counsel of your own choosing representing each of your respective interests. Insert each party’s attorney’s name and which party the attorney represented.

These provisions can help ensure that you and your spouse discuss your interests now to protect them in the future.

Erin Kopelman is a family law attorney at Lerch, Early & Brewer who assists clients in the areas of domestic relations and divorce. To learn more about prenuptial agreements, contact Erin at (301) 347-1261 or elkopelman@lerchearly.com.

This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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