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Prenups can seem negative at first. Some people seem to think that planning for a prenuptial agreement is planning for a divorce. KGH Family Law is here to tell you that that could not be further from the truth.
Prenuptial agreements are also called a prenup or a premarital agreement. Think of a prenup as a guarantee that you and your future spouse are on the same page regarding what motivates you to get married.
What is a Prenuptial Agreement?
A prenuptial agreement is a contract that you and your future spouse enter into prior to your marriage. The purpose of this contract is to define the terms of separation should your marriage end, either by divorce or death.
A valid prenuptial agreement must cover several specific terms concerning the separation of property, spousal maintenance, and other legal matters. It is important to work with a prenuptial agreement attorney when working on your contract to make it fair for you and your partner but also legally sound and won’t be thrown out of court upon the first reading.
You can look at a prenup process as an opportunity to take the rules of your marriage into your own hands instead of relying on the input of a divorce court to decide what your potential separation will look like. Instead of depending on the standard “norms” of divorce, you and your partner will sit down and negotiate the terms of your marriage, as well as the terms of your potential divorce. This is a form of investing in your future, your relationship, and possible divorce, as you and your spouse will both be aware of where the cards would fall should your relationship end.
Instead of battling each other in court, you both know what the end of your relationship would entail from a legal standpoint, all with the help of a prenup.
What Elements Should be in a Prenup?
When you consider that a premarital agreement is a legal contract that must hold water under legal scrutiny, then you know it must contain certain elements that a judge will consider when determining its validity.
Here are some elements that your prenup should include. These points are common across most premarital agreements, but your specific situation may have certain elements that only an experienced prenuptial attorney will be able to help you with.
Disclosure of Financial Information
When drafting a prenup, it is important for you and your partner to sit down and fully disclose your assets and debts. This step is necessary for the validity of your prenuptial agreement. Hiding any assets or debts may be enough for your partner to have the prenup voided in the case of divorce.
Defining Premarital and Marital Property
It is important to define how your premarital properties and assets are defined. It is even more important to define how assets and properties gained during your marriage are defined.
Normally, all assets gained during your wedding would be considered a marital asset and would be evenly split should you divorce your partner. When you and your soon-to-be spouse enter into a premarital agreement, you decide together how your assets, including assets gained during your marriage, are divided instead of relying on the divorce court to split your assets. Using a prenup is a way to separate assets and separate property, even though you are married.
An example of this would be investments you make while you are married. Normally, all gains made from successful investments would be a part of your marital pool and divided evenly amongst you and your partner. A prenup can waive your spouse’s claim to these investments.
Inheritance Rights
If you expect to inherit property from a family member, you can include a section in your prenup to protect your inheritance in the case of a separation.
Likewise, you can outline how your inheritance is distributed to any children you had before your marriage. Normally, your assets would go to your spouse should you pass. This way, you can define how you would like your assets distributed to your minor children.
Division of Debts
Normally, you and your partner’s debt would be combined and then divided between the two of you should you separate. This means that you could be on the hook for debt that you did not incur. Using a prenup, you can enter into an agreement that each party is responsible for the debts they incurred during the marriage.
When Can a Prenup be Overruled in Maryland?
Again, it is important to remember that this is a contract. This means that it must be legally sound, and any element that violates the law can result in the contract being overruled by a judge or outright voided.
If any of the following are present in your prenup, it can be void:
- Fraud
- Duress
- Coercion
- Mistake
- Undue Influence
- Incompetence
- Unconscionability
Should You Hire a Prenuptial Lawyer?
It is actually possible for couples to come up with their own prenup. You may feel confident with the notarized legal document that you and your partner downloaded online. That confidence won’t mean anything when a judge throws your prenup out at first glance because it didn’t meet all the requirements of a sound contract and is considered invalid.
KGH Family Law can help prepare you and your partner for a fair prenuptial agreement that protects both of you.
Call 240-616-6968 to schedule your consultation to find out how KGH Family Law can help get your marriage kicked off on the right foot!