Referred to casually and colloquially as a “prenup,” a prenuptial agreement, antenuptial agreement, or premarital agreement is an agreement entered into between parties before their marriage, which outlines how to address alimony and property issues between the parties in the event that they divorce or either party dies. The provisions of these agreements remain in place until the divorce or death of the parties.
Historically, prenuptial agreements were disfavored because of concerns that entering into these agreements would encourage divorce. However, prenuptial agreements are now generally accepted and enforceable in the State of Maryland, because the State has recognized the rights of parties to enter into contracts to determine their property rights upon divorce or death.
Parties to a marriage are said to be part of a “confidential relationship.” As a result, when one party tries to invalidate a prenuptial agreement, and the other wishes to enforce it, the burden is on the party who wishes to enforce the agreement to prove that it is reasonable and fair.
Like any contract, prenuptial agreements are not automatically enforceable. In certain circumstances, these agreements may be found to be invalid. For example, if there is overreaching between the parties with respect to the agreement, meaning that in the context of the parties’ confidential relationship, either the manner in which the agreement was reached, or the terms of the agreement, are unfair or inequitable. Parties could also assert traditional contract defenses to a prenuptial agreement. These defenses include, but are not limited to, duress, coercion, fraud, or incompetence.
Both parties to the prenuptial agreement should make a full and truthful disclosure of his or her assets. Without disclosure that is complete and accurate from both parties, each person is unable to understand what he or she might be waiving by entering into the agreement. As a result, including a written disclosure of assets into the agreement is important in protecting the enforceability of the agreement. Even without full disclosure of assets, so long as the terms of the agreement are shown to be fair and equitable and that the parties entered into the agreement freely and voluntarily, the agreement may still be enforced.
In sum, prenuptial agreements can be an effective method to avoid or lessen much of the uncertainty, anxiety, and expense that can be associated with divorce. However, it is important to take steps to ensure that the prenuptial agreement is entered into knowingly and voluntarily by both parties and that the agreement will be enforceable.
