What Can and Cannot Be Included in a Prenup?

While many people think prenuptial agreements are only for celebrities and the wealthy, this is not the case. A prenup agreement is for anyone who wishes to protect their assets and establish financial expectations when they enter into a marriage. If you and your future spouse are considering a prenup, it’s important to understand what can — and cannot — be included in this document.

What is a Prenuptial Agreement?

A prenuptial agreement is a contract that is entered into before marriage. It allows spouses to control property rights in the event of divorce or death. These agreements can be used to protect each party’s financial interests and specify the terms of asset division if the marriage doesn’t work out. They can also be used as part of a comprehensive estate plan.

In order to be legally binding in Maryland, the agreement must be voluntary, in writing and executed by each future spouse. The terms must be fair — and all assets and debts must be fully disclosed, unless one of the parties agrees to waive that right. After the couple is married, the document becomes valid. However, the validity of the prenup can be challenged if there was undue influence, coercion, unconscionability, or fraud involved in procuring or signing the document.

What Can Be Included in a Prenuptial Agreement?

A prenup agreement can be used to decide a broad scope of issues related to property owned by the future spouses. These agreements let the spouses decide property division matters for themselves, rather than allow a judge to decide the outcome if the couple chooses to divorce. Although every agreement is different, a prenup may contain provisions for the following, depending on the objectives of the future spouses:

• Asset division — A prenuptial agreement can determine who will get which assets in the event of divorce, including the family home.
• Debt allocation — Just as property obtained during the marriage would be considered marital property, debts would be as well. Prenups can help to protect a spouse from the other’s debts by designating them as separate property, regardless of when they were incurred.
• Alimony — A prenup can establish whether alimony will be paid if the couple parts ways.
• Future inheritances — While inheritances are typically classified as separate property and not subject to division in divorce, if they are commingled with marital assets, matters can get complicated. To ensure any future inheritance is safeguarded, it can be included in a prenup.
• Businesses — Business owners can take measures to protect their interests in the event of divorce by including a clause addressing this matter in a prenup.
• 401ks and retirement savings accounts — Any assets that are contributed to a 401k or retirement account after marriage would typically be considered marital property. However, retirement savings can be protected in a prenup by specifying that these assets be treated as separate property.
• Pet custody — A prenuptial agreement can establish custody of any pets that were brought into the marriage or acquired during the marriage.

Prenups aren’t just executed in contemplation of divorce. Importantly, a prenuptial agreement can also work alongside a comprehensive estate plan — this can be particularly important when one or both of the spouses have children from a previous marriage and want to ensure the children are provided for.

What Cannot Be Included in a Prenuptial Agreement?

While a broad scope of financial issues can be addressed in a prenuptial agreement, there are certain limitations. For instance, the contract cannot decide child custody and support matters as a matter of public policy. Child custody and support determinations are made based upon best interests of the children at the time the decision must be made — not in advance. Circumstances can change considerably over time and what might seem fair when the prenup is signed may not actually be what is best for a child in the future.

In addition, under Maryland law, a prenuptial agreement cannot govern the personal aspects of a couple’s relationship or provide an incentive that encourages divorce. These contracts cannot be used to enforce the daily responsibilities or chores of the spouses, attempt to assign specific roles in the marriage, or penalize a spouse for certain behaviors. Any such clauses would generally be rendered unenforceable by a court.

Can You Get a Prenup After Marriage?

Although a prenuptial agreement must be entered into before the marriage in order to be enforceable, couples who wish to establish property rights may still do so at any time during the marriage with a postnuptial agreement. This contract serves the same purpose as a prenup, but the main difference is when it was created and enacted. A postnup can be a good alternative to a prenup if financial circumstances have changed during the marriage or there wasn’t enough time to enter into a prenup before the wedding.

Contact an Experienced Maryland Prenuptial Agreement Attorney

If you are considering entering into a prenup, it’s essential to have the counsel of an experienced family law attorney who can assist you with creating an agreement that is tailored to your needs. At the Law Office of Shelly M. Ingram, our Fulton, Maryland family law attorneys are dedicated to guiding you every step of the way through the process of drafting and negotiating a prenuptial agreement. To schedule a confidential consultation with an experienced Maple Lawn divorce attorney, call us at (301) 658-7354 or contact us online.