Why Your Prenuptial Agreement Must Be Strong

If you’re a fan of country music, you may be following the (messy) post-divorce story of Kelsea Ballerini and Morgan Evans. They’re a clear example of why we tell our clients they should NEVER air their dirty laundry online, even when you have an outlet to share your side with the world.

One of the elements we’re interested in has to do with their prenuptial agreement. They had one in place – as everyone should, especially when there are substantial assets at play – but according to Ballerini, that prenup did her no favors. From Divorce Elite:

During [an interview, Ballerini] emphasized that a prenup didn’t mean their divorce was mess-free. “Who you marry is not who you divorce. As he’s putting out a song about being blindsided [“Over For You”], he’s taking half the house that he didn’t pay for,” she told Cooper, per People. “How was I married to this person for this long and had no idea that that bit of character was tucked within that human being?”

She recalled her conversation with her lawyers: “They’re like, ‘He wants half the house; that’s how they’re reading the prenup,’ or there’s messy alimony language.” According to her, she clarified with her lawyers, “Can you articulate to me that I have a choice right now, to [either] give up half of a house that I bought and he contributed [to], but not equal … or stay, legally, in this marriage and have public alimony hearings indefinitely?”

There is a lot to unpack here, but it’s the issue of the prenuptial agreement that truly caught our eye. Because if their agreement was strong (and if Ballerini understood how property division works in an equitable distribution state), a lot of this “mess” may have been avoided.

What you should know before drafting your prenup

Before drafting a prenup, there are several steps you should take:

• Talk to an experienced family law attorney. They will help finalize your document and make it legal. Never sign one without knowing your rights. Although you do normally draft up your own prenup first, your attorney will ensure it complies with the law.
• Start the process early. Several months before you get married, draft the agreement with your partner. Do not rush into creating this document, as this one piece of paper alone can significantly influence your future if a divorce is to happen.
• Be transparent with each other and disclose all assets and debts involved. Make it clear who owns what, including properties.
• When drafting the prenup, keep it clear and do not use confusing terms.
• Ensure that your inheritance rights are secured.

We’ll give you an example a little closer to home. Several years ago in Maryland, James Stewart, who had up to $2 million in assets prior to his marriage, presented his fiancée, Barbara, with a prenuptial agreement. Before first checking with a lawyer, Barbara willingly signed the document. But within the document was language that said in the event of separation, each partner was to waive any interest in the other’s assets and properties. When Barbara later tried to challenge the prenup in court, claiming her husband had failed to “fully and frankly disclose all of his property interests and assets and because he presented the agreement to her so close in time to their impending marriage that she had no opportunity to consult with counsel before signing it,” the court decided that the circumstances of the signing were fair. She would have known before signing that the assets involved were substantial, yet she signed freely.

As they say, ignorance of the law is no excuse for breaking it, and Mrs. Stewart’s ignorance, much like Ms. Ballerini’s, does not mean that the domestic relations laws of the state can be cast aside. This is why it is so important to work with a Fulton divorce attorney when crafting a pre- or post-nuptial agreement.

What should be included in a prenup?

Be sure to discuss the property rights obtained prior to or during the marriage. Include any tax deductions and claims, retirement benefits, inheritances, alimony, and monetary awards. It is crucial that the agreement is factual only. Many times, the couple will engage in mediation to establish an agreement. Ensuring that all of this important information is included in the prenup can help prevent many emotional arguments down the line. Your debt will also be protected and your financial rights decided, so you can have more peace of mind.

When is a prenuptial agreement unenforceable in Maryland?

In Maryland, there are no specific laws or statutes that govern prenuptial agreements in family law; instead, they are generally treated the way any contract would be. That means that invaliding the agreement requires one or more of the following elements:

• You signed the agreement under duress
• You signed the agreement without a full disclosure by the other party of assets
• You were a minor at the time you signed the agreement
• The other party committed an act of fraud

As we see from the Stewart case, simply not knowing how much money your partner has is not enough; essentially, you must prove that efforts were made to hide the true worth of those assets.

Having an experienced family law advocate by your side is crucial, whether you’re just starting to draft your prenup or you’re heading towards a divorce. We have a team of lawyers ready in Fulton, Bethesda, Rockville, and Colombia to assist you. Don’t create a prenup all on your own; our attorneys will ensure that your document is fully valid and strong enough to help you in court if ever needed. Schedule a consultation with a Fulton divorce attorney from McCabe Russell, PA by filling out our contact form or calling our office.