Prenuptial agreements can save spouses a significant amount of time and money in divorce that would otherwise be spent litigating identification of non-marital property, marital property division, and alimony. Commonly referred to as “prenups,” these contracts allow future spouses to clarify financial expectations during marriage, determine what would be classified as marital property versus separate property, and financial obligations to each other (alimony) in the event they part ways. However, there are best practices that should be followed for a legally valid and enforceable prenup.

If best practices aren’t followed, a spouse may challenge a prenup in court during divorce proceedings. If the court determines the agreement should be invalidated, Maryland law would dictate the issue of property division and spousal support, not the prenup. Specifically, courts consider the following when determining whether a prenuptial agreement in Maryland should be upheld when challenged:

1. Lack of Full Financial Disclosure

Full financial disclosure is key when entering into a prenuptial agreement in Maryland. Both parties should fully disclose all of their assets, property, and liabilities. Each must also have the opportunity to review the other party’s finances with their attorney.

Depending on the parties’ financial circumstances, full financial disclosure when executing a prenup can include the following assets:

• Real estate
• Bank accounts
• Investment accounts
• Business interests
• Vehicles
• Credit card balances
• Student loans
• Mortgages
• Income sources
• Debts
• Expected gifts or inheritances

Courts evaluate whether there was financial transparency between the parties at the time the prenup was signed. Most prenuptial agreements include a schedule of each spouse’s assets and liabilities to demonstrate disclosure was made. If a spouse failed to fully disclose their assets or deliberately concealed them, the entire agreement is at risk of invalidation. Especially if it is unconscionable (clearly one-sided).

2. Duress or Coercion

A prenuptial agreement in Maryland can be challenged based on duress or coercion. Each party must have voluntarily entered into the agreement without being pressured. In determining whether the prenup should be invalidated due to duress or coercion, a court would evaluate:

• The timing of the prenup: A prenup that was signed days or just hours before the wedding can indicate a party was unduly pressured into signing it.
• The presence of threats: Threats of physical harm, financial ruin, and reputational harm can help prove coercion and nullify a prenup.
• Emotional state and capacity: If a party’s vulnerable emotional state was exploited, there were language barrier issues, or a party was under the influence of drugs or alcohol, a court may render the agreement invalid.
• Lack of independent counsel: While not strictly required by law, parties are encouraged to retain their own separate counsel before signing a prenuptial agreement, and have adequate time to review the document with them. Without an attorney, a party may argue they did not know what they were signing or understand the legal consequences of doing so.

The burden of proof lies with the party claiming duress or coercion. This means they must provide evidence of the other party’s wrongdoing.

3. Unconscionability

Prenuptial agreements in Maryland must be fair to both parties to be enforceable. When the terms of a prenup are extremely one-sided, grossly unfair, or “shock the conscience,” a judge may determine it is not enforceable. Especially so when combined with other factors, like lack of financial disclosure, timing too close to the marriage, and/or lack of attorney representation.

4. Provisions That are Illegal or Violate Public Policy

Although a prenuptial agreement in Maryland can address a wide range of financial and property-related matters, terms that are illegal or violate public policy are not enforceable. While these do not, alone, invalidate a prenup, parties may not be required to follow them in a divorce. Examples can include those that:

• Determine child custody and support
• Encourage divorce
• Regulate marital life or personal behavior
• Encourage illegal conduct
• Impose fines or financial consequences for behavior that are disproportionate to the parties’ finances

While the rest of the prenup may remain valid, a court can strike any provisions that violate public policy.

Contact an Experienced Maryland Prenuptial Agreement Attorney

Whether you’ve been presented with a prenup, are considering one, or an existing prenup is being challenged in court, it’s essential to have a skilled attorney by your side. Contact Lindsay Parvis today to schedule an appointment to discuss your case.