Many of my clients worry about raising the idea of a prenuptial agreement with their fiancé/fiancée because of the anticipated response and what it “says” about their relationship.
Whether or not a couple enters into a premarital agreement is a personal choice. That said, I tell all of my clients that having a prenuptial agreement is like wearing your seatbelt – you hope you never need it but you’ll be happy to have it if you do.
What is a Prenuptial Agreement?
Prenuptial agreements, also known as premarital agreements, are contracts between intended spouses designed to determine rights and obligations arising out of a marriage in the event of separation, divorce, annulment, or death. Washington, D.C., Maryland and Virginia all recognize prenuptial agreements and courts in those jurisdictions will enforce valid prenuptial agreements.
Prenuptial agreements can be invalidated if they are found to be entered into under duress or coercion. Similarly, prenuptial agreements can generally be invalidated if they are procured by fraud.
What Can be Addressed in a Premarital Agreement?
Prenuptial agreements can resolve all rights and obligations arising out of a marriage or can be limited to only certain claims, for example, a house or alimony/spousal support. In crafting a prenuptial agreement, parties are provided the ability to be as creative and detailed as they determine. Additionally, the terms of a premarital agreement can be as unique as each individual couple.
It is common for a premarital agreement to contain a financial disclosure for each party. Parties are best served discussing the possibility of a prenuptial agreement and its terms far in advance of their marriage date to afford them the time needed to carefully consider things, gather information, and discuss terms without the additional responsibilities the arise in the weeks before a marriage.
Can a Premarital Agreement be Modified?
In general, the terms of a premarital agreement cannot be modified by a court unless the premarital agreement is written in a manner that allows modification by the court. An exception to this general rule is child custody, child visitation, and child support. In Washington, D.C., Virginia, and Maryland, child custody, child visitation, and child support are modifiable based on a material change in circumstances, contrary terms of a prenuptial agreement notwithstanding. Stated another way, a prenuptial agreement cannot forever resolve issues of child custody, child visitation, or child support.
It should be noted that if parties can agree to modifications to their premarital agreement, they are permitted to modify terms as they see fit to account for changes in circumstances, etc. To modify a premarital agreement, a separate document should be prepared reflecting the modifications the parties would like.
Do I Need an Attorney?
Parties are not required to have attorneys represent them in negotiating, drafting, or modifying a premarital agreement. However, it is highly recommended that counsel is involved as prenuptial agreements, and modifications thereto, are technical documents and the words and phrases included in the document can be just as important as the words and phrases that are excluded in the document.
Further, though an unrepresented party can enter into a prenuptial agreement or modification to prenuptial agreement prepared by an attorney representing the other party and that alone will not be grounds to invalidate the agreement, it is strongly advised that both parties to a prenuptial agreement or modification to prenuptial agreement have their own attorneys.
Moreover, in Washington, D.C., Virginia, and Maryland, an attorney is not permitted to represent both parties in a prenuptial agreement matter. Finally, there is no prohibition in Virginia, Maryland, or Washington, D.C. on one party to a prenuptial agreement providing the funds to the other party so that the other party can retain an attorney to represent him or her.
If you are considering entering into a prenuptial agreement or exploring modifications to your existing prenuptial agreement, you should consult with an attorney trained in this area of law.