What Is a Maryland Postnuptial Agreement?
A Maryland postnuptial agreement protects a couple’s assets if they divorce or one spouse dies. It’s similar to the more familiar prenuptial agreement, but the timing of the two documents differs. A couple writes a postnup after they marry, while they create a prenup before they marry. Postnup creation is not in anticipation of divorce. Instead, it’s a precaution and helps couples settle matters before tension occurs.
Parties may enter into a postnup for a variety of reasons:
- to protect a family inheritance
- to secure the division of personal wealth
- to protect one spouse from the other’s debt
- to allow for the financial care of children from another relationship
- to avoid costly litigation in the event of a divorce
Maryland does not have specific statutes governing postnups. Instead, they are covered by contract and family laws, which allow spouses to create a binding agreement. The agreement can cover financial obligations such as property division, spousal support, and personal rights (MD Family Law Code § 8-101).
Maryland is an equitable distribution state, which means property division is decided by the courts upon divorce. When dividing property, judges consider the age of each party, how much each spouse earns, and whether one spouse is the primary caretaker for their children (MD Family Law Code § 8–205). A postnup allows you to decide as a couple how your assets and debts will be divided and takes the decision out of the court’s hands.
How to Write a Postnuptial Agreement for Maryland
Our Maryland postnuptial agreement template includes key elements to help you make a legally sound contract. Explore the steps in the writing process below.
- List the parties’ names: List both spouses’ names and addresses.
- Identify children involved: Name the children you’ve had together. Also, name any from previous relationships.
- Specify financial disclosures: Clarify that each party has given a fair disclosure of their finances. Without it, the agreement will not be valid.
- Identify property: Identify how property acquired before and during the marriage will be treated.
- Decide on the division of marital property: Determine if you want property divided by state law or by a certain percentage if divorce occurs.
- Assign business ownership: Decide how a business will be split. It can be granted to the owner, shared equally, or divided by a certain percentage.
- Determine debt treatment: List how debts acquired before and during marriage will be treated. State how debts will be split if the marriage ends.
- Give your preferred tax filing method: Decide if you will file taxes together or separately.
- Settle housing arrangements: Explain what will happen to the marital home upon divorce.
- Assign pet custody: A pet custody agreement assigns guardianship of pets if the marriage ends.
- Set alimony: Maryland has default payment procedures for determining spousal support in a divorce settlement agreement. However, a postnup can supersede state statute if both parties agree (MD Family Law Code § 8-101). You can even choose to waive spousal support.
- Additional clauses: The flexibility of the Legal Templates builder allows you to include other clauses. For example, you can outline the care of a disabled spouse or the financial support of children from previous relationships.
- Sign and notarize: The document must be signed by both spouses. While notary acknowledgment isn’t mandated in Maryland, having a notary witness your signatures is recommended to avoid future questions of validity.
Sample Maryland Postnuptial Agreement
View a free Maryland postnuptial agreement template to know what to include in yours. Then, write your own using our document editor and download a copy in PDF or Word format.
Legal Requirements and Considerations for Maryland Postnups
Courts in Maryland recognize the validity of a postnup if it’s in writing and willingly signed by both spouses. Both parties must have fully disclosed their assets and debts when the agreement was written.
Signing Requirements
Both parties must sign the postnup. Otherwise, it will not be enforceable.
Legal Representation
State law doesn’t require the spouses to hire independent counsel. However, it’s recommended that each spouse have their own attorney. This way, the attorneys can review the terms and ensure their interests are represented fairly.
Excluded Terms
Maryland postnups cannot dictate the terms of child support, custody, or visitation. These matters are left up to the family courts, as they can decide what’s best for the child.
Unconscionable or unfair terms are also not allowed in postnups (Nouri v. Dadgar (2020)). They should not leave spouses without financial support, and they should not result from undue influence, mistakes, or fraud.
Burden of Proof
A spouse who later challenges a postnup must prove that it is unfair or unconscionable. They may also need to show that circumstances have significantly changed since the agreement was signed.
The exception to this rule is when the spouse wishing to enforce the contract can prove that a confidential relationship existed between the parties when they signed the agreement.
In that case, the spouse seeking enforcement has the burden to prove why the contract should remain valid (MD Family Law Code § 8-101 & Canon v. Canon (2005)). Maryland courts have found a confidential relationship in a prenup and would likely also find the same type of relationship in the context of postnup enforcement.
Timing
The timing of a postnuptial agreement doesn’t affect enforceability in Maryland. The courts don’t consider whether the spouses contemplated divorce or separation when the agreement was written to determine its validity (MD Family Law Code § 8-102).
