Getting a prenup soon? Congrats! If you’re just getting started on your prenup journey, you may be thinking about what you want to put into your prenup—what’s even allowed? Better yet, what is not allowed? Great questions! From property division matters to infidelity clauses, Maryland prenups have a broad range of topics that may (or may not) be included. So, let’s get into all of the clauses you should be considering before signing that prenuptial agreement.
The laws governing Maryland prenups
Maryland doesn’t have a specific statute governing what may or may not be included in a prenuptial agreement like some other states do. However, case law can give us an idea of what Maryland courts accept (and do not accept) for prenuptial agreements. This means that the validity and enforceability of specific clauses often depend on how Maryland courts have ruled in similar cases in the past. Below, we outline what clauses are generally acceptable in Maryland prenups.
Property division clauses
The meat and potatoes of a Maryland prenuptial agreement are the clauses surrounding property division. Property can encompass many different types of assets. Think:
- Real estate
- Businesses
- Debt
- Inheritances
- Retirement accounts
- Bank accounts
- And more
You can outline which assets/debts are separate and which are marital. If something is deemed separate, that means it is owned by that party and not divided during a divorce. If something is deemed marital, then it is divided in a divorce.
Spousal support clauses
Another common clause for Maryland prenuptial agreements is spousal support. Spousal support is the financial support from the higher-earning spouse to the spouse earning less. This may be in the form of a lump sum payment or ongoing installments. With a prenup, you can modify or eliminate the right to receive spousal support payments. For instance, this could be limiting the income used for calculating spousal support, capping an amount on spousal support, or saying it’s not warranted in any scenario.
Certain estate planning matters
While a prenuptial agreement is not a replacement for a valid will or trust, it can be used as a supplementary tool. You can include a waiver of spousal elective share, which basically says that the surviving spouse may not be entitled to the deceased spouse’s estate.
In Maryland, the spousal elective share says that, even if written out of the will, a surviving spouse may still be able to take a portion of their deceased spouse’s estate. However, a prenup can prevent this from happening. This may be especially crucial for people with children from previous relationships who want to ensure their assets go 100% to their children.
Pet clauses
Pets are like family nowadays, so it’s no wonder people want to include terms about their beloved animals in their prenuptial agreements! In Maryland, you can include terms about who gets custody (shared or sole), who is responsible for vet bills, food, etc., and who is responsible for major decisions, such as putting the animal down. These clauses help prevent conflict and heartbreak down the road and ensure the animal stays with their rightful owner.
Other clauses
That’s not all! There are tons of other clauses that may be included in a Maryland prenup. Here are some other clauses people include:
- Tax filing
- Confidentiality
- Who gets to stay in the marital home in a divorce
- Mediation requirement for divorce
- And more
As long as it’s regarding personal obligations and rights, not against public policy, and doesn’t include matters related to children, it’s probably acceptable to include it in your agreement.
Not permitted: Child support and custody clauses
Virtually all states agree that parents shouldn’t be able to agree to terms about child support and custody in a prenuptial agreement. This is because these matters, by law, are required to be based on the best interests of the child—not necessarily an agreement between the spouses. Consider a scenario where a prenuptial agreement attempts to eliminate one parent’s obligation to pay child support. If, upon divorce, this clause were enforced, the child would be directly harmed, not necessarily the other spouse. This is because child support is fundamentally the right of the child, not a parental benefit that can be contracted away in a prenup.
What about infidelity clauses?
Maryland is actually one of the few states where infidelity clauses may be permitted. In a recent case, the Supreme Court of Maryland upheld an infidelity clause in a postnuptial agreement, which required one spouse to pay the other $7M due to their infidelity, as outlined in their postnup agreement. While postnups and prenups have distinctions, a Maryland Supreme Court ruling upholding an infidelity clause in a postnup offers a possible but uncertain indication for prenups.
So, in Maryland, the enforceability of infidelity clauses in prenups is still up in the air. If you choose to include one, it’s advisable to also include a severability clause, ensuring the rest of your prenup remains valid even if the infidelity clause isn’t upheld. Be aware, though, that a court might still remove the infidelity clause.
The bottom line on what you can include in a Maryland prenup
Well, there you have it—everything you need to know about what to include in your Maryland prenuptial agreement. To sum it up, you can include any personal obligations or rights that aren’t against public policy and don’t include child custody or support matters. Most people include property division, spousal support, certain estate planning matters, and more. Whatever you decide to include, make sure it reflects your true intentions and is fair and reasonable for both you and your future spouse. Happy planning!
Cary Jacobson is the founder and CEO of Jacobson Family Law. Cary has been practicing law for over a decade, having successfully represented clients in all facets of family law proceedings. Jacobson Family Law focuses on assisting clients in creating out-of-court solutions to their separation, divorce, custody, and other family law matters without the drama and stress associated with litigation. Additionally, Jacobson Family Law assists clients with protecting their assets through the negotiation of pre/post-nuptial agreements and estate planning.
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