One question I always ask when someone comes in about a separation or divorce is if they have a Prenuptial Agreement (also referred to as a Prenup or Ante-Nuptial Agreement). Sadly most do not. Invariably however, those who have a Prenuptial Agreement are pleased with the fact they do, even though the Agreement may give them less than they might otherwise potentially receive if there was no Agreement. Most of those with Prenuptial Agreements entered their marriage with their eyes wide open to the potential that their marriage might not last forever, understood the economic realities of marriage, and recognized that by having a Prenuptial Agreement they are avoiding the acrimony, expense and uncertainty of a contested divorce.
For those who have just gone through the process of a contested divorce, one of the most common things I hear is either, "I will never get married again" or "Next time I will get a Prenup". All to often neither of those statements are true. In fact the likelihood of a divorce in a second marriage is even greater than in a first, and the value of a Prenuptial Agreement in a second marriage is even greater. Often second marriages involve children from a first marriage that one party wants to provide for and/or other assets that one party brings to the marriage and wants to protect.
Most people do not realize that when "I do" means they are agreeing to wide variety of legal obligations that automatically attach to a marriage if there is no Prenuptial Agreement.
A spouse is entitled to an automatic share of their spouse's estate if they die without a Will and potentially a forced share even if their spouse has a Will. The spouse may also end up as the personal representative (also known as the executor) of their former spouse's estate.
A new husband or wife may be the mandatory beneficiary of a spouse's retirement benefits, or have to sign off in order for their spouses to make certain elections within their retirement plan.
Even property that one spouse had before marriage may even not be safe. A house in one party's name still becomes in part marital property as payments are made on the mortgage or improvements are made to the house. Funds one party had before the marriage, which were inherited or which were received by gift, may become marital property subject to the claims of the other spouse as a result of unintentional commingling or the inability to trace the source of the asset.
A Prenuptial Agreement can change all of this. It can be tailored to meet the parties' desires and expectations, allowing them to control parts of the legal relationship that arises out of marriage. It can protect the inheritances of children from the first marriage. A Prenuptial Agreement can be used as a estate planning tool. Last but not least, with nearly half of all marriages ending in divorce, it can avoid much of the cost and acrimony of a divorce and/or separation.
Though a Prenuptial Agreement is no a cure all capable of avoiding all of life's potential problems, it is an inexpensive means by which to avoid many, and something I would recommend to anyone about to get married. While I understand talking about a Prenuptial Agreement is potentially difficult discussion to have with a potential new spouse, it is still a conversation very much worth having. It is also something which should be broached as soon as possible. Signing a Prenup at the alter, or having to delay a marriage to get the Prenuptial Agreement signed not only blunts the romance, it can weaken the Agreement.
Maryland has specific case law effecting Prenuptial Agreements, and specific requirements in order for them to be effective. The agreements should also be tailored to your specific needs and circumstances, as they are not "one size fits all". Finally, the circumstances surrounding their execution can become extremely important to the vitality of the agreement.
If you are thinking about getting married, and especially of you have already been
divorced or widowed, come see us about whether a Prenup is the right thing for you. Let us help you to evaluate the potential risks and rewards based on the specifics of your situation. Even if you decide against having a Prenuptial Agreement, the consult can alert you to issues you never even thought of, so that your eyes are wide open when you say "I do". Call Russell & Heffner, LLC, at 301-695-2977 or email RHLaw@comcast.net.