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How is marital property affected by prenuptial agreements?

A couple might want to avoid financial ambiguities by agreeing on certain terms before their marriage. Contract law can provide a solution. In Maryland, state law allows couples to enter into a special contract called a prenuptial agreement before their marriage. If the couple later divorces, such an agreement may help simplify the process, especially regarding matters of property division.

However, our law office, which focuses on family law, would caution that an attorney should be consulted when drafting a prenuptial agreement. Unless common mistakes are avoided, a court might deem a prenuptial agreement to be unenforceable.

First, a prenuptial agreement cannot violate basic tenets of contract law, such as being made under duress or containing provisions that are illegal. Terms that are blatantly unfair to one spouse might also be deemed unenforceable, or perhaps invalidate the entire agreement.

A couple may also have questions about the scope of their prenuptial agreement. For example, if a couple is planning on buying a home together after they are married, can their agreement specify how that real estate would be divided in the event of a divorce? For that matter, savvy readers might question why an agreement would even need to address jointly acquired assets, as property purchased during a marriage is already presumed to be part of the martial estate, and thus subject to equitable distribution.

The answer is that prenuptial agreement can address financial matters both big and small. An agreement might specify which spouse would stay in the marital home while a divorce is pending, for example. It can also address bigger issues, allocating ownership in the event a couple has multiple properties. For persons who had substantial assets or debts before marriage, an agreement can also ensure that those assets and liabilities will remain separate.

Source: Huffington Post, "Everything You Need to Know About Prenups," Ivy Jacobson, June 1, 2015

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