Malik Law LLC

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Prenuptial Agreements - Love it or Leave it?

Posted by Sarah I. Malik on December 10, 2017 at 7:55 PM

What comes to mind when many people think about signing a pre-nuptial (or "prenup") before marriage? Well that marriage is doomed! Or, how could you think about divorce when you are planning your wedding?!

While prenups are often looked down upon, the truth is that a prenup can serve as a smart planning tool in the event of the unthinkable.

Do all couples need a prenup? Not at all. But, if you are concerned about making sure that your assets are protected, including those that may be co-mingled (meaning you bring in property to the marriage but it is used by both individuals - for example, a home that you both then share), a prenup may be a good option. If you have had a previous, not-so-pretty divorce, a prenup may be right for you. If you and your soon-to-be spouse know that you want to have clear lines about how property, assets and finances will be handled during or after a marriage, a prenup may be appropriate.

Prenups can incorporate agreements regarding alimony, property distribution, monetary award and even dispositions upon death. By knowing the parties' assets at the time of marriage and determining how to handle future acquisition of assets, then in the event of separation and divorce, the process becomes much more streamlined. Prenups cannot include provisions regarding custody and child support, even if the parties have children together before marriage.

Prenups are not intended to facilitate a breakup and can, in fact, be drafted in a way that promotes married life together. Consider these benefits:

*Encourages thoughtful planning before marriage

*Reduces future conflict/court involvement (and accordingly, attorney's fees)

*Requires relevant disclosures prior to marriage to be enforceable (each party must disclose his or her income, assets, and debts)

Prenups can have some downsides.  Often, a party is giving up something that he or she would have some entitlement to under the law in the event of divorce. For example, a prenups can include a provision that both parties waive their respective interest in the other party's retirement assets. In the event of divorce where there is not a prenup, a court would consider balancing the parties' retirement assets (among other assets) to make an equitable division or distribution.

Maryland and Washington, D.C. view prenups as contracts and the formation and enforceability of such a document are subject to the general principles of contract law. Even if the terms appear more advantageous to one party over the other, the prenup will be upheld (even decades down the road) if: a) the agreement was entered into with a full and complete disclosure of each person's financial picture (income, assets and debts); b) it was not entered into under duress; c) each party entered into it knowingly and freely; and d) each party sought the advice of counsel (or knew he or she could seek the advice of counsel).

There is no doubt about it that conversations about prenups are tricky. But, discussing it with your fiance carefully and honestly should result in a meeting of the minds as to whether a prenup is right for you.

Categories: Maryland Family Law

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1 Comment

Reply George Bondurant
3:13 AM on March 29, 2018 
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