MAKING IT EASIER: TIPS TO AVOID HAVING YOUR PRENUP THROWN OUT IN COURT
Introducing a prenuptial agreement shortly after getting engaged is not the most romantic way to celebrate the forthcoming union, but there are ways to make it easier for your future spouse to put up with your request, as well as ensure it is not later invalidated or nullified. A court can invalidate a prenuptial agreement if it finds that there was, among other things, fraud, duress, coercion, mistake, undue influence or unconscionability in the terms or circumstances surrounding the prenuptial, Cannon v. Cannon, 384 Md. 537, 573, 865 A.2d 563, 566 (2005), so make sure to be mindful of these things:
- Full and honest disclosure of assets. Think you can get away with not telling your beloved about your government retirement fund and still have your prenuptial agreement enforced? You may have to think again. Not providing a “frank, full, and truthful disclosure” of all assets could lead a court to possibly find fraud in the prenuptial agreement and invalidate it on that ground because the concealment gives rise to the implication of fraud. Levy v. Sherman, 185 Md. 63, 73-74, 43 A.2d 25, 29-30 (1945). The general purpose behind requiring comprehensive disclosure is so the party who is agreeing to waive their rights or claims knows what they are giving up. Cannon, 384 Md. at 574. This relates to the next point about fairness.
- Fair and equitable terms. Remember to be fair with your prenuptial proposal – try not to draw up terms that put your new partner in a position where they are left out in the cold with not even two sticks to rub together to keep him or herself warm should the marriage not stand the test of time. Courts have voided agreements that were “unjust or inequitable” when the agreements were completely lacking any reasonable consideration. For example, in one instance the wife signed a separation agreement that relinquished her rights to property that totaled more than $700,000 for only $10,000, and where between $200,000 and $250,000 worth of property was relinquished for $4,300. Bell v. Bell, 38 Md. App. 10, 15, 379 A.2d 419, 422 (1977) (citing Cronin v. Hebditch, 195 Md. 607, 74 A.2d 50 (1950); Eaton v. Eaton, 34 Md. App. 157, 366 A.2d 121 (1976)). Overall lesson: don’t give your loved one a really lousy deal.
- Chance for negotiation. Try to avoid a “my way or the highway” mentality when it comes to presenting a prenuptial agreement to your future spouse. A court will look more favorably upon an agreement in which there was a chance for the other party to negotiate the terms for the prenuptial. In regard to showing undue influence or duress upon a party, evidence of negotiation between the parties may be an indicator of a valid contract between equals, while a lack of negotiation may show undue influence. Cannon, 384 Md. at 572, 865 A.2d at 583-84. A chance for negotiation helps to show that the other party was not deprived of his or her free will in signing the agreement, so be open to conversation about your requests.
- Opportunity to obtain independent legal advice. Similar to why it is best to provide a chance for negotiation of the agreement to show that it was entered into freely, voluntarily, and knowingly, it further helps to allow an opportunity for your partner to obtain independent legal advice about the proposed terms of the prenuptial. Asset distribution can get very complicated and the help of an attorney may be needed for your love to truly understand what he or she would be agreeing to.
- No pressure, no manipulation, no tricks. Basically, this means anything along the lines of not waiting until the day of the wedding to spring a pre-nuptial agreement on your fiancée at the last minute. A court may set aside an agreement if it finds that it was unconscionable at the time the agreement was made. Martin v Farber, 68 Md. App. 137, 144, 510 A.2d 608, 611 (1986). When determining whether the agreement is unconscionable, the court is barred from examining the fairness of the agreement at the time of enforcement, and can only look at the conditions that were occurring at the time the agreement was made. Id. So even if the agreement has fair terms, a court could still invalidate it if your better half was under duress or there was trickery or manipulation at the time the agreement was signed. Also, try not to take your soon-to-be for a surprise or approach them in an infirmed condition – Sleeping Beauty above is in no condition to thoughtfully sign a prenuptial agreement!
Following these tips should help make it easier for your husband or bride-to-be to put up with your prenuptial request and potentially uphold the agreement if worse comes to worse, but it is always best to consult an attorney for specific help in your own situation, as every situation is different.