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Frequently Asked Questions on Prenuptial Agreements (II)

Law Offices of Yu & Associates

Should everyone consider signing a prenuptial agreement?

Prenuptial agreements are not for everyone. If you are getting married for the first time and both parties have little or no prenuptial assets, you may not need a prenuptial agreement for protection. But if either of you is hoping to receive a large estate or will be the recipient of a large family trust, it is worth considering making a prenuptial agreement.

What if we want to change a prenuptial agreement?

Changes can be made to either a prenuptial or postnuptial agreement with the consent of both spouses. A prenuptial agreement can be amended any time before the marriage, and a postnuptial agreement can be amended at any time during the marriage. Amendments to a prenuptial or postnuptial agreement also require the signatures of both parties to make the entire agreement valid.

Can a prenuptial agreement completely waive alimony?

Prenuptial agreements usually involve alimony and division of property. Some states do not allow waiving of alimony in a prenuptial agreement. Maryland is not one of these states, but prenuptial agreements that waive alimony are subject to intense court scrutiny if there is a lawsuit.

Can gay/lesbian/gender-diverse couples have prenuptial or postnuptial agreements?

Yes. LGBTQ couples in Maryland have the same rights as anyone else to enter into a prenuptial or postnuptial agreement.

Do I still need a lawyer if my fiancé(e)'s lawyer has prepared a prenuptial agreement?

A lawyer can only represent one spouse in matters of a prenuptial or postnuptial agreement due to the conflicts of interest. As the interests of both spouses in a prenuptial agreement are generally not the same, each party needs an independent lawyer to review the prenuptial agreement to ensure that both parties' respective rights are protected.

What are the benefits of a prenuptial agreement?

There are many reasons why couples should enter into a prenuptial agreement. In the case of divorce, for example, having a previously signed prenuptial agreement may help resolve disputes peacefully during the divorce process. It can also protect premarital property, protect the interests of children, and avoid expensive litigation costs.

Should a prenuptial agreement be drafted by one lawyer representing both parties?

The answer is no. It is very common for one party to hire a lawyer to draft a prenuptial agreement; however, the other party also needs a lawyer to check the whole document, explain the terms and your rights, and review the legality of the prenuptial agreement, because the interests of the spouses are different. The spouses need to communicate, cooperate, and negotiate the terms to be included in the prenuptial agreement. The final content of the prenuptial agreement needs to be signed based on specific facts and the needs of both parties.

Can a prenuptial agreement stipulate child custody?

No, it cannot. While a prenuptial agreement is designed to prevent the consequences of legal disputes arising from divorce or death, a prenuptial agreement cannot create a contract for the arrangement of child custody or child support. Prenuptial agreements involving custody and child support will not be supported in court.

What should we keep in mind when preparing a prenuptial agreement?

1. The content of the entire prenuptial agreement must be kept fair and honest. When drafting a prenuptial agreement, both parties must honestly disclose all of their assets and liabilities and include them in the prenuptial agreement. The content of the draft must be reasonable and fair to prevent future challenges to the validity of the agreement. In addition, if one or more assets are omitted from the prenuptial agreement by one of the spouses, it is likely that those assets will be considered as co-owned assets and will be divided at the time of divorce, thereby hurting the interest of the party who forgot to include certain assets.

2. Both parties should hire their own lawyer to review the prenuptial agreement and try to fully understand what is contained in the agreement. If one of the parties is not represented by their own attorney when signing the prenuptial agreement, it is very likely that the other party will be challenged on the validity of the prenuptial agreement, because the party who was not represented by an attorney may claim that they did not understand the content of the prenuptial agreement or the prenuptial agreement was not reviewed by their lawyer.

3. Do not include child support or child custody in your prenuptial agreement. A prenuptial agreement cannot provide arrangements or solutions on this issue. In the event of disputes and lawsuits in the future, the judge will not make a decision based on provisions in the prenuptial agreement regarding child custody, but will consider the best interest of the child(ren) instead.

4. Drafting and signing a prenuptial agreement is a process of negotiation between the two parties. Take the time to carefully study and understand the impact of the agreement on both parties. A prenuptial agreement usually takes several rounds to complete.

Can a prenuptial agreement be challenged and voided?

The prenuptial agreement must be in writing and signed by both spouses. Once the couple gets married, the agreement takes effect. However, the validity of a prenuptial agreement can be challenged if there is fraud, undue influence or intimidation, conscious lack of awareness, or coercion in the process of signing the agreement.

The above is a general introduction, and should not be construed as individual legal advice. For specific legal questions, please contact the Law Offices of Yu & Associates. Tel: 301-838-8986, Fax: 202-595-1918; E-mail: syu@yulegal.com, Address: 110 N. Washington St., Suite 328E, Rockville, MD 20850. (All rights reserved.)

Ó Yu & Associates LLC, 110 North Washington Street, Suite 328E, Rockville, MD 20850, USA. Tel: 301-838-8986