Potential clients often ask whether prenuptial agreements (also called ante-nuptial agreements) are enforceable in court. The answer is – they can be and often are. Prenuptial and postnuptial agreements often avoid costly litigation and permit parties to amicably resolve complex issues without submitting the issues to a court. In fact, Maryland courts favor agreements between parties that resolve issues. However, not all prenuptial and postnuptial agreements may be enforced simply because both parties signed.
The Maryland appellate courts have been clear that “a party seeking to attack the agreement may resort to the other potential contract defenses . . . fraud, duress, coercion, mistake, undue influence, or incompetence on the part of a party.” Cannon v. Cannon, 384 Md. 537 (2005).
Further, when the parties enter into a prenuptial agreement, the court is required to consider other additional factors as well. The court moves away from a “straight forward contract” analysis to a focus on the confidential relationship that exists and whether there was frank, full and truthful disclosure of income and assets when the agreement was entered into. Cannon at 567.
The Supreme Court of Maryland ultimately set forth a five-factor test gleaned from John F. Fader, II & Richard J. Gilbert’s Maryland Family Law, which summarized what it considered five “important considerations to determine the validity of a premarital agreement”:
- fair and equitable in procurement and result;
- parties must make frank, full and truthful disclosure of all their assets;
- the agreement must be entered voluntarily, freely and with full knowledge of its meaning and effect;
- the importance of independent legal advice in evaluating whether the agreement was voluntarily and understandingly made is emphasized;
- there is a confidential relationship between the parties which, if a contest to validity occurs, shifts the burden of proof to the one attempting to uphold the agreement to prove that it is fair and equitable.
Callahan & Ries, Maryland Family Law, Seventh Ed., § 14-5.
An analysis of each of these factors is case specific. An experienced family law attorney will seek to avoid the appearance of any impropriety in guiding you while drafting a prenuptial or postnuptial agreement. Such issues as providing your partner a limited time for review, only weeks or days before a wedding, using fraud, duress, or coercion to obtain his or her consent and other issues can lead to a court not enforcing an agreement. Parties must also fully disclose all of their assets, not leaving a party to take his or her partner at their word. Additionally, even if a partner chooses not to engage a lawyer, he or she must be provided the opportunity to seek independent legal advice. In one prior case, a husband consulted with his own legal counsel for almost seven months and then presented the prenuptial agreement to his wife-to-be only a few days before the wedding. Clearly, she was deprived of the opportunity to seek independent legal counsel.
While prenuptial and postnuptial agreements are incredibly important and useful tools in equitably dividing premarital assets and resolving issues in the event of a marital dispute, you should seek an experienced family law attorney who is familiar with both the intricacies of drafting such an agreement and the pitfalls should the agreement ever be challenged.
Darin L. Rumer is a partner in Joseph, Greenwald & Laake’s Family Law practice group. He has successfully tried multiple divorce, custody and child support cases throughout the state of Maryland for over 20 years and routinely provides counsel to clients as they navigate a difficult and stressful time in their lives. David routinely advises and represents clients in family law matters including child custody and divorce litigation, separation agreements, child support and alimony issues, property distribution issues, domestic violence, and all other areas of family law.
