The prenuptial agreement is a somewhat unusual type of contract, but it is still a contract. Instead of creating and defining a business relationship, it represents an agreement between two spouses-to-be about what would happen if they got divorced someday.
Prenuptial agreements usually focus on property division. While you can get fairly creative with your prenup, Maryland law will not enforce certain terms, such as:
- Anything to do with child custody or child support
- A clause agreeing to divorce
- A contract to get married, unless one of the parties is a pregnant woman
- Legal action for alienation of affection
Including one or more of these terms may not cause the judge to throw out the entire agreement, but they will not enforce the offending section. However, just as with any contract, if one of the spouses can show they were coerced or defrauded into signing the prenup or that they lacked mental capacity at the time, the court will not enforce it.
Adultery clause allowed?
Unusual clauses may be enforceable in the event of a divorce. But if one spouse objects, it could lead to a lawsuit. For example, a divorcing Maryland couple is in the midst of extensive litigation over whether the ex-husband must pay his former wife $7 million for committing adultery, according to the terms of their postnuptial agreement. The case reached the state Supreme Court after the trial court and court of appeals rejected the ex-husband’s contention that the adultery clause was illegal. He claims it is unenforceable because it seeks to punish him for his behavior rather than compensate his ex-wife for damages. But prior rulings have indicated that the clause is reasonable and allowed under state law.
When negotiating and drawing up a prenuptial (or postnuptial) agreement, both you and your spouse should work with your own attorney. Your lawyer’s advice will help explain what your prenup can and cannot do and help you work out an agreement that fits your needs.