A Maryland prenuptial agreement can address many financial matters, including how property, debts, and spousal support may be handled if a marriage ends. However, it cannot include provisions that violate public policy or determine issues such as child custody or child support.
A well-drafted prenuptial agreement allows couples to establish clear financial expectations before marriage. Understanding what can and cannot be included can help you make informed decisions and create an agreement that is more likely to be upheld if challenged later.
Maryland has not adopted the Uniform Premarital Agreement Act. Instead, prenuptial agreements are governed by Maryland Ann. Code, Family Law Art, § 8-101, and common law contract principles developed through court decisions.
What Can Be Included in a Maryland Prenuptial Agreement?
Maryland law allows couples flexibility when creating a prenuptial agreement, provided both parties enter into it voluntarily and the terms are lawful.
Common terms and provisions include:
- How premarital and non-marital property will be identified and protected
- How marital property will be divided in the event of divorce
- Responsibility for debts incurred before or during the marriage
- Whether either spouse may receive alimony and, if so, under what conditions
- Rights involving family businesses, investments, retirement accounts, or inheritances
- How jointly purchased property will be treated
A prenuptial agreement may also establish procedures for handling future financial matters, helping reduce uncertainty if circumstances change.
What Cannot Be Included in a Maryland Prenuptial Agreement?
Although prenuptial agreements offer broad flexibility, there are important limits.
For example, you cannot include provisions that:
- Predetermine child custody arrangements
- Waive or limit a child’s right to receive child support
- Require a spouse to engage in any illegal conduct
- Encourage divorce or otherwise violate public policy
Maryland courts decide custody and child support based on the child’s best interests at the time of the custody dispute. Because children’s needs can change over time, parents cannot make binding decisions about these issues before marriage or divorce.
Can You Waive Alimony in a Maryland Prenuptial Agreement?
Yes, Maryland prenuptial agreements may include provisions that limit or waive alimony. Courts generally enforce these provisions when the agreement was entered into voluntarily, both parties had adequate knowledge of each other’s financial circumstances, and the terms are not otherwise unenforceable. However, courts may carefully review alimony waivers if questions arise about fairness, coercion, fraud, or other circumstances affecting the validity of the agreement.
What Makes a Maryland Prenuptial Agreement Enforceable?
A prenuptial agreement is more likely to be enforced when it is prepared carefully, and both parties have an opportunity to make informed decisions before signing.
Some factors that strengthen enforceability include:
- Full, frank, and truthful financial disclosure
- Voluntary execution without pressure or coercion
- Clear, understandable language
- Adequate time to review the agreement before the wedding
- Each party having the opportunity to consult independent legal counsel
Although Maryland does not require each spouse to have a separate attorney, independent legal advice can help demonstrate that both parties understood the agreement before signing.
Can a Prenuptial Agreement Be Changed After Marriage?
Yes. Married couples may modify or revoke a prenuptial agreement if both spouses agree to the changes. This is called a post-nuptial agreement. Any modification should be made in writing with the same formality as the initial prenuptial agreement and properly executed to avoid future disputes.
As your financial circumstances change, reviewing an existing agreement may help ensure it continues to reflect the goals of the marital couple.
When Should You Start Preparing a Prenuptial Agreement?
The best time to begin discussing a prenuptial agreement is well before your wedding date. Waiting until the last minute can create unnecessary pressure and may increase the likelihood that one party later claims they were forced to sign or did not have sufficient time to review the agreement with legal counsel.
Starting early allows both individuals to gather financial information, discuss expectations, negotiate terms thoughtfully, and consult with independent legal counsel if desired.
A prenuptial agreement can provide clarity about financial expectations before marriage, but it must be carefully drafted to comply with Maryland law. Including unenforceable provisions or failing to follow proper procedures can create problems if the agreement is challenged later.
If you are considering a prenuptial agreement, Darin L. Rumer can help you understand your options, prepare an agreement based on your financial circumstances, or review an existing draft before you sign.
