By Nelson Garcia, Esq., 301.563.6685
People who consult me about prenuptial agreements generally fall under two categories; (1) those convinced they need one and (2) those who want to know if they should have one and, particularly, how they would benefit from having one.
In advising those inquiring about a prenuptial agreement (or “prenup”), I first explain that it’s a contractual agreement between a couple, signed before they get married, which sets forth the division of their assets (and, if desired, financial support they may need) in the event of divorce. I also explain the rights and risks they would have in the absence of a prenup. The information that the client brings to the consultation can be of great help, particularly a list of the property each party has and the client’s goals in entering into a prenup.
Whether a prenup benefits one or both of the parties depends on a wide variety of factors. These tend to include such things as: (1) was at least one of them married before? (2) is the client bringing assets into the new marriage that they want to avoid entangling with marital property, and/or is one party is much wealthier than the other? (3) does either party have children? (Note that a prenup can cover inheritance questions, but cannot detail anything related to child support or child custody) (4) what are the parties’ ages, and are they interested in including terms as to the disposition of property in the event of death? (5) does one have a lot more debt than the other? (also consider who will pay for things like student loans if one person decides to go back to school, or the mortgage payment in case of a divorce when one person gets the home) (6) is one or both a small business owner or entrepreneur who wants to protect their investments? (7) do the parties want to ensure their finances remain private? (a prenup can ensure that with an appropriate confidentiality clause) (8) will one party will be staying at home to raise a child, and therefore need a financial plan in the event of a divorce?
One great benefit of having a well drawn-up prenup is that it can avoid substantial conflict and cost in case of divorce. Many of the terms will already be decided upon, so there will not be too much to argue about. Of course, there will still be disagreements, but there will likely not be nearly as many as compared to a case without a prenup.
I also advise clients that fairness matters in entering into a prenup. In Maryland, the agreement has to be fair, the parties have to fully disclose their assets, and although an attorney is not legally required for each party in Maryland, they are very strongly encouraged to each retain one. This prevents either spouse from later arguing that they were misled or didn’t have representation in the negotiations. Hiding assets or failing to make an honest disclosure of debts may be grounds for the other party having the agreement voided later on. In addition, although one can find just about anything on the Internet, you should not try to use a template off the Web to handle such an important and potentially costly decision. Simple errors in the technical formalities or the way in which the document is drafted or executed could render it useless later.
If you have questions as to prenuptial agreements or need compassionate legal guidance regarding a divorce matter, please contact me, Nelson Garcia.
About Andalman & Flynn, P.C.: Andalman & Flynn, P.C. serves clients throughout Maryland and the District of Columbia, offering compassionate, quality service and results-driven representation across a broad range of legal areas. With a concentration on disability benefits law and family law, the firm focuses on cases that impact the rights of everyone, and they are there for clients when responsive legal help is most critical. For more information about Andalman & Flynn, please visit http://www.andalmanflynn.com, or call 301.563.6685.