Gavel and wedding rings

While many view a prenuptial agreement as a “plan for divorce,” these legal documents actually serve as a form of protection in the event a marriage doesn’t work out. While most couples preparing to get married are so in love they can’t even fathom the idea of being separated from their soon-to-be-spouse, we don’t actually know what the future holds or if a marriage is going to withstand some of the common issues that often arise in a relationship. And because many individuals enter into a marriage with assets, careers, and future inheritances, it is important that all are protected in the event one or both parties decide to file for divorce later on down the road.

So, what exactly should and should not be included in this legal agreement that is made prior to a couple tying the knot?

While there are several things you should and should not include in your prenuptial agreement, some of which we have shared with you down below, we do recommend you schedule a time to come in and meet with one of our Rockville, MD family law attorneys if you are considering having one drawn up.

Here are a few things you will want to address in your prenuptial agreement:

  1. Future inheritances. If you know a family member plans to leave one or more assets behind for you when they pass, you should include this in your prenup. Generally, anything that is acquired during a marriage is subject to being divided equally during a divorce, however, inheritances can sometimes make the division of assets a complicated matter. Therefore, to ensure your inheritances are protected and will be considered private property, you should include it in your prenup.
  2. 401k accounts or other retirement savings accounts. If you’ve been contributing to a 401k account or another retirement savings account, you might want to keep it protected from being divided in the event your marriage doesn’t work out. While some couples don’t feel the need to include this as one spouse may have agreed to take out more income from their paychecks to fund the account while the other didn’t, if you both are contributing to your own 401k, perhaps you might want to include how these accounts will be divided in the event of a divorce.
  3. Businesses or investments. If you own a business, whether it be the entire business or just a stake in it, and don’t want to risk losing a portion of your share, it might be wise to include a clause in your prenup that addresses this.

Here are few things you shouldn’t include in your prenuptial agreement:

  1. Clauses that address child support or child custody. Whether you are entering into the marriage with children or plan to have a child together in the near future, a prenuptial agreement isn’t the document you want to use to address child custody or child support matters [Source: The People’s Law Library of Maryland]. In fact, if you attempt to include a clause regarding it, it likely won’t uphold in court as a judge is going to consider what is in the best interest of the child at the time of the divorce, not what is stipulated in the terms of your prenuptial agreement.
  2. Personal preferences. Prenups are agreements that are used to decide what shall be considered marital property and what will stay separate, it’s not the document you would use to stipulate your personal preferences. For example, if you want your spouse to look a certain way or pursue a specific career, these are things that should be discussed within your marriage and not during the drafting of your prenuptial agreement.

Tips that Can Help You When Drafting Your Prenup

  1. Hire your own legal counsel. You should definitely consider hiring your own family law lawyer in Maryland who will help you draft an agreement you understand and one that addresses your wishes. This way, you walk away with a full understanding of what you are agreeing to and can feel good about it.
  2. Be fair and honest during the process. When drafting your prenup, it is important that you be fair and honest and disclose all assets, debts, etc. so it can be included in your agreement. The truth is, in the event you forget to include one or more assets, inheritances, etc. in your prenup, it will likely be subject to division should you and your spouse divorce.
  3. Be patient with your partner during the process as it can sometimes become overwhelming for one or both parties.

Why You Should Choose Barkley & Kennedy to Help You Draw up Your Prenuptial Agreement

When you have an experienced Rockville, MD family law attorney assisting you with your prenup, you can be sure that it will address all the issues you want included in it and that it is going to be worded so that it is enforceable in court. While anything can be written in a prenuptial agreement, it doesn’t exactly mean a judge is going to consider the terms to be valid. Therefore, if you want to be sure your assets, inheritances, business, etc. is going to be protected in the event your marriage doesn’t work out, call Barkley & Kennedy today and let one of our skilled attorneys help you write up your prenuptial agreement that adheres to state laws.


You can reach Barkley & Kennedy at:

51 Monroe Street, #1407

Rockville, MD 20850

Phone: 301-251-6600