While this may sound strange coming from a law firm that drafts prenuptial agreements, the reality is that most people who think they need a prenuptial agreement in Washington, DC or Maryland, do not really need one and should not bother paying for one. The reason we are telling you this is that we believe in being honest with all our prospective clients and are not out to make a quick buck.
The reason many people do not really need a prenuptial agreement is because they are not designed to protect people who have modest assets but hope that one day they will become wealthy. The reason for this is because a prenuptial agreement is a contract and requires what legal scholars refer to as a bargained-for exchange. While this might bring back unhappy memories for the many lawyers in the Washington, DC area if it reminds them of first year contracts class, in this case, it is an important concept. Basically, in order to have a valid contact, the parties must have full disclosure of a person’s assets and must get something in exchange for entering into the agreement.
In reality, what happens is that, if a party who is already wealthy wants his or her future spouse to enter into a prenuptial agreement, he or she must first fully disclose all of his or her assets. Many people will ask if they have to tell their future spouse about all of their assets or if they can keep some things secret. If you want your future husband or wife to enter into a prenuptial agreement, it must be done in a knowing and intelligent manner, and that means there must first be a full disclosure of assets.
In addition to the requirement for a full disclosure of assets, the agreement must be legal and not averse to public policy. With respect to it being legal, we are not talking about breaking the law exactly, but it must adhere to the laws on contract in the jurisdiction upon which you live. For example, if you live in Rockville or Gaithersburg and are getting married, your prenuptial agreement must be valid under Maryland law. If you want a prenuptial agreement in Washington, DC it would have to be valid under the DC Code (Title 46 Chapter 5). In Washington, DC, prenuptial agreements are technically called premarital agreements. There is also something called a postnuptial agreement if the parties are already married, but that poses additional challenges involving consideration.
With respect to not being contrary to public policy, the law does not favor leaving the divorcee of a wealthy person in need of public assistance. As judges for many years said, favoring the seemingly ancient phrase, we do not want to leave someone “on the dole” following a divorce.
This means that there must be something of value the spouse being asked to sign the agreement will get upon a divorce. While her or she might get half of a $10 million estate, there may be payment of some lesser, but still significant amount of money.
It should also be noted that a prospective spouse cannot sign away a child’s (or future child’s) right to receive child support in the event of a divorce. The reason for this is because the law considers the child the person who is owed the child support and not the mother or father. Even if the mother or father decided not to ask for child support, the child would still have a right to do so. In reality, what this means is that if the child is receiving public support, such as TANF, the attorney general will have a right to file for child support on the child’s behalf, and the government will keep the money.
If you need assistance with a prenuptial agreement in Maryland or Washington, DC, please feel free to contact the Law Offices of Daniel A. Gross, PLLC.