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Understanding Pre- and Postnuptial Agreements in Divorce

Marriage is, in many cases, a happy and joyful event, but also brings legal complexities, such as the joining of assets. In order to clarify ownership and avoid some of the difficulties associated with merging (and potentially uncoupling) finances, some couples find reassurance in using either a pre-nuptial or post-nuptial agreement.

However, no matter what the reason is for using them, these documents should always be drafted and executed by a divorce attorney to ensure they are enforceable and legally binding.

The use of a pre- or post-nuptial agreement can be an invaluable element during a divorce. It is wise to have a solid understanding of the capabilities of pre-nuptial and post-nuptial agreements in divorce proceedings, their overall roles, legal implications, and how they impact asset division and spousal support.

Here is what couples need to know, whether you are getting married or are already married.

The Basics of Pre- and Post-Nuptial Agreements

The word “nuptial” refers to marriage; pre- and post-nuptial agreements are simply documents that have been executed, either before or after the marriage, that define limits and expectations in the event of a marriage or divorce.

Both types of agreements are considered contracts, which means they have the power to define the elements of both parties’ finances and marriage as long as both sign the contract in sound mind and without coercion.

Although anyone can create a pre- or post-nuptial agreement from scratch or a template, it should always be reviewed by a divorce attorney before signing. Otherwise, couples may jointly sign an agreement that later proves not to have any impact on the consequences of divorce or relational conflict, or could be financially damaging for one party.

Are These Agreements Legally Binding?

Pre- and post-nuptial agreements can be legally binding, but each clause can be evaluated separately. Maryland law still supersedes such contracts. This means that couples cannot include stipulations or agreements that violate Maryland law or overreach beyond the role of the court.

For instance, a couple cannot dictate the terms of child custody or child support through these agreements. However, when agreements are made in accordance with the law, in good faith, and signed by both parties, Maryland can recognize them as legally binding documents.

This is why working with a divorce attorney to draft these contracts is essential, as it can clarify which elements may be non-enforceable later and help the parties devise a suitable alternative.

What Is Typically Included in Pre- and Post-Nuptial Agreements?

Pre- and post-nuptial agreements are just as unique as the people who make them; thus, many elements can potentially be included or excluded. Some of the most common factors that are often written into these contracts include:

  • divorce attorney separating money stack in divorceAsset division – Pre- and post-nuptial agreements often delineate how each partner would like to divide assets in the event of a divorce. This can establish a clear path to avoid conflict later and may include rules about separating bank accounts, retirement, investments, pensions, and more.
  • Alimony – Partners may agree in advance who will pay alimony and for how long. They may add a clause applicable to both or may utilize stipulations that only one is responsible for alimony in a divorce, such as if only one partner is working and the other is committed to being an at-home spouse.
  • Inheritance – Pre- and post-nuptial contracts may stipulate how assets will be inherited by beneficiaries. This may remove certain assets from eligibility for division in the case of divorce allowing those assets to go to their appointed heirs (e.g., children).
  • Ownership – In cases in which one partner owns a substantial interest (such as a home or business), pre- and post-nups may contractually codify that ownership of such an asset remains with its original owner regardless of the events of a divorce.
  • Debt – Partners can establish rules for who pays which debts, ensuring that partners do not become saddled with debt that does not relate to them.

Although there is often pall cast on these agreements, they can be highly advantageous in situations in which one person carried the finances to allow the other to complete a degree, or if one earner left a career to be a stay-at-home parent.

These are often sacrifices made out of love, but can become deficits during a divorce. Having this understanding outlined can reassure both parties when making large life changes.

A pre- or post nuptial agreement does not insinuate a lack of trust in your partner, it can be considered insurance that the court will not determine your finances in the event of a dissolution of marriage.

Are Agreements Mandatory?

adult woman and a man, sitting at a table in the office, fill out documents or formsPre- and post-nuptial agreements are not mandatory for marriage. They are an option for partners who want to clarify their financial and other roles within the marriage and in preparation for potential separation.

If a divorce should occur in the absence of a prearranged agreement and without amicable resolution, the court will have a more active role in determining asset division.

Get Help with Pre- and Post-Nuptial Agreements

If you are considering creating a pre- or post-nuptial agreement with your partner, best practices include having an attorney draft and execute, or at a minimum, having a divorce attorney review and execute one already drafted. Failure to do so can lead to unfortunate surprises during a divorce.

The attorneys at SIEGELLAW are experienced in creating comprehensive contracts and helping manage difficulties surrounding the enforcement of existing pre- and post-nuptial agreements if you are facing divorce. Contact SIEGELLAW to schedule a consultation.

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