November 12th, 2020
Prenups: Who Needs ‘Em?
Posted in: Family Law
A prenuptial agreement is like an insurance policy; you hate dealing with it and you hope never to have to use it, but if you wind up needing it, you are very glad to have it. Nobody wants to contemplate the end of a marriage before it has even begun, but having a prenup not only protects against unforeseen problems but by anticipating and resolving certain potential eventualities, actually can remove anxiety, and provide comfort and certainty in a variety of contexts going into a marriage. A few examples follow.
This Is Your Spouse’s Second Marriage. Someone who has said “I Do” before may have strings attached – like it or not. How will your partner finance ongoing alimony payments to his or her first spouse? Does your intended spouse own property with a former spouse or owe a duty of child support? A prenup can address how these expenses will be paid.
You or Your Partner Have Children from a Previous Relationship. Couples with children from previous relationships often use prenups to earmark marital and non-marital assets for those children. In most states, including Maryland, property acquired during the course of a marriage is considered “marital property” and, in the absence of a prenup, is subject to broad-brush rules with regard to asset division at the time of divorce or death. Use of an effective and enforceable prenup can proactively address these issues, and thus can significantly mitigate conflict between the children and step-parent – now and in the future.
You Bring Significant Assets, or Your Spouse Brings Significant Debt, to the Marriage. People who have established their careers and have – or one day will have – significant assets (business interests, savings, retirement or other investments, family inheritance, real property, etc.), may need to consider the degree to which it is important to designate those assets as separate from shared marital property. Similarly, your partner may bring to the marriage substantial debts (education loans, outstanding mortgage debts, etc.). In either case, a prenup is a crucial mechanism for preemptively addressing how these matters will be handled, and can establish clear rules for distinguishing what is marital and what is non-marital, without comingling.
You Have Relationship Baggage. Whether your parents divorced or you yourself have been unlucky in love in the past, designing a prenup can bring important comfort to the already anxiety-provoking process of preparing for marriage. As a legal contract, a prenup may give you –and your partner– added confidence, comfort and security as you prepare to walk down the aisle.
To establish a prenuptial agreement, it can be recommended that each person retain their own lawyer to represent their individual interests. An experienced family law attorney is helpful in anticipating sources of conflict or disagreement given their detachment from the emotions of the impending marriage. In addition, attorneys who practice in areas of estate planning, tax and business law can add helpful perspective, as each of these professionals will encourage unique and case specific considerations based on their areas of practice. As a full service firm, our clients are able to benefit from the breadth of talent of our attorneys in each of these practice areas.