When a couple decides to get married, they typically do so out of love and affection and to proclaim their commitment to one another. It’s a time of great joy when two lives are joined as one and a couple enters into the holy sanctimony of marriage.
Marriage, while a wonderful institution, does not guarantee a long lasting or forever lasting relationship. During the course of the marriage, events might unfold which cause emotional, physical, and mental trauma to one or the other partner. It’s these unknown circumstances that can result in a tumultuous relationship, one that becomes strained or loveless. Unfortunately, the statistics on divorce are a reality and even if there is no legal separation or divorce in the future, legal troubles can arise.
Because marriage is actually a legal contract between a husband and wife, certain liabilities are present throughout the length of the marriage and can be very costly, both emotionally, and monetarily. Couples need to protect themselves not only collectively, but individually.
Marital and Cohabitation Agreements
In general, these types of agreements are designed to put into writing each party’s intention and assign ownership of assets and liabilities. These legal contracts are to reduce the risk of litigation and/or plan in advance for the possibility of divorce.
Because marriage is a legal contract, a civil lawsuit is necessary to end a marriage., This is called “dissolution of marriage”, and falls under the Maryland Code, Family Law, Title 7; while in the District of Columbia, divorce falls under D.C. Code, Title 16, Chapter 9. This is collectively known as “family law” and relates not only to separation and divorce, but also to prenuptial agreements, post nuptial or post marital agreements, and cohabitation agreements.
A cohabitation agreement, also called a “living-together contract”, is a legal document which puts into writing the couple’s commitment to one another and protects each parties’ assets should their relationship dissolve. It also details the relationship between the two parties and explains any property division.
It is imperative to have an experienced, skilled, and reliable attorney draft such agreements to be fully enforceable if the need arises. We are intimately familiar with these types of contracts and can assist you and your future or current spouse.
A premarital or prenuptial agreement is a legal contract which expresses in writing the intents, wants, and needs of both the wife and husband. It can stipulate and assign certain rights and responsibilities, if circumstances arise which cause the marriage to fail or protect a spouse from his or her husband or wife from being legally liable from things such as business debts.
Future unknown circumstances could cause emotional and financial hardships for one or both parties in a marriage, and having a competent, knowledgeable lawyer draft a marital agreement is necessary to protect both parties.
Who Should Consider a Prenuptial Agreement
Every couple should strongly consider having a prenuptial agreement. Common situations where a prenuptial agreement is most beneficial include, but are not limited to the following:
- Anyone who has assets such as a home, stock, or retirement fund(s)
- Anyone who owns all or part of a business
- Anyone who may be receiving an inheritance
- Anyone who has children or grandchildren from a previous marriage
- One individual is much wealthier than the other
- One individual will financially support the other through college and/or academic endeavors
- One person has a loved one who needs to be taken care of, such as elderly parents
- You foresee a big increase in income
Issues Addressed and Not Covered by Premarital Agreements
In the District of Columbia and the state of Maryland, what can and cannot be enforced in a marital agreement are generally the same. However in Washington D.C. a prenuptial agreement cannot restrict child support. What a premarital agreement can determine is:
- The parties’ rights in connection with all marital and nonmarital property
- The amount — or elimination — of spousal or domestic partner support
- The making of a will, trust or other arrangement to carry out the provisions of the agreement
- The parties’ rights related to the death benefits from a life insurance policy
- Any other matter that doesn’t violate public policy or criminal law
In addition, such agreements must meet certain criteria in order to be enforceable under D.C. or Maryland law. Therefore, it is possible to challenge a prenuptial agreement.
Challenging a Premarital Agreement
Generally, these agreements are challengeable in Maryland and the District of Columbia and it is important to speak with a legal professional to advise you of the specifics in accordance with your circumstances in order to fight the constraints of such agreements.
The criteria for challenging a prenuptial agreement can be based on these factors:
The challenging spouse should be eligible for public assistance if the alimony limitations in the agreement were enforced
The challenging spouse did not sign the prenuptial agreement of their free will or involuntarily
The agreement itself is grossly unfair or “unconscionable”
The challenging spouse was not privy to full and fair financial disclosure prior to signing the legal document
The challenging spouse did not waive his or her rights to financial disclosure from the other party in writing
The challenging spouse was genuinely unaware of the true financial circumstances of the other party.
The challenging spouse was not represented by counsel before signing the agreement.
There are more reasons which can facilitate the legal right to challenge a premarital agreement and speaking with one of our attorneys is vital to know what rights you have.
About Postnuptial Agreements
A post marital agreement, as the terminology suggests, is an agreement between two married people which puts into writing each party’s rights and responsibilities, including such things as assets and liabilities in order to protect both parties. These agreements cannot be unfair to one spouse, even if the spouse who is disfavored voluntarily signs the document because the agreement itself would fundamentally violate the law. In most cases, couples enter into a post marital agreement to replace a prenuptial agreement because of a change in circumstances.
Reasons for Having a Post Marital Agreement
Like prenuptial agreements, there are reasons to have a postnuptial agreement between you and your spouse. The most common reasons are:
- There has been or will be a substantial change in your or your spouse’s financial status
- There is a dispute over your collective finances
- You or your spouse are starting a business
- You and your spouse want to specify how your assets and debts would be divided upon divorce
Of course, this is not an exhaustive list and there are more reasons for having a postnuptial agreement drafted. Call now to speak with one of our experts and have your situation assessed. If you do not have a post marital agreement and the marriage comes to an end, it might cost you dearly.
Alternative Means of Resolution
Though parties routinely put into writing their roles, rights, and responsibilities in prenuptial and post marital agreements, such contracts can be challenged. In the event there was no marital agreement put in place but the one or both parties wishes to bring the relationship to an end, there are four methods for resolving the situation:
Traditional negotiation takes place between the spouses and each of their attorneys. The parties work to reach an agreement as to the division of assets and liabilities, as well as the custody and visitation of any minor children. If the parties and their attorneys cannot come to an amicable agreement, the next step is mediation.
Mediation takes place between the spouses and each of their attorneys, along with a third party, known as a mediator. The mediator listens to each party and attempts to reach an agreement as to the division of assets and liabilities, as well as the custody and visitation of any minor children.
Collaborative divorce is an out of court alternative dispute resolution and is intended to facilitate a more amicable dissolution of marriage, while also reducing the time and cost incurred by litigation. Like mediation, it attempts to reach an agreement as to the division of assets and liabilities, as well as the custody and visitation of any minor children. However, should this process break down, the only alternatives left are arbitration and litigation.
Protecting your assets and minor children are paramount. Contact us now to consult with one of our experienced marital attorneys to learn about your rights and what we can do to assist you.