Sadly, marriage is not always what you think it will turn out to be. Only about half of American marriages are successful and do not end in divorce. Realizing this, many couples headed down the aisle decide to create and sign a prenuptial agreement.
This type of agreement can be beneficial to both spouses if their journey ends in a divorce court. However, prenuptial agreements must meet specific standards to be valid.
If you and your future spouse want to draft what is also known as a premarital agreement or you have one that needs to be enforced, reach out to The Maine Divorce Group for assistance.
What is a prenuptial agreement in Maine?
Prenuptial agreements or “prenups” are essentially marriage agreements between two people before they are officially wed in Maine. These contracts cover the financial aspects of the marriage in the event that it ends.
While prenups were once quite rare — largely drafted to protect elderly people’s wealth from the property division process in the event of divorce — they are more common now. One reason for this is that people often get married later in life than before, having already accrued considerable assets.
However, not all prenuptial agreements in Maine are enforceable. They must follow the principles of the Uniform Premarital Agreement Act (1983), which outlines a set of requirements governing the enforceability of prenuptial agreements. These are further discussed below.
If the marriage agreement is valid, it comes into effect when the relationship ends, i.e., when the couple separates, divorces or one of the partners dies.
Who needs a prenuptial agreement?
When couples get married, the last thing on their mind is separation. However, the reality in the U.S. is that about 50 percent of marriages end in divorce.
Prenups are no longer considered the domain of the wealthy only. Individuals who have accumulated assets before marriage or who run a business might consider a prenuptial agreement.
These assets may be in the form of real estate, savings, shares, or other less obvious assets like retirement accounts.
When a couple divorces in Maine, many financial matters can create potential conflict. Marital property, including the family home, is divided according to equitable distribution laws, i.e., what’s fair under the circumstances of each case. This can lead to disagreements about what constitutes “fairness” and marital property.
A prenup can help you shield assets from this process and prevent legal problems, reducing the likelihood of expensive and time-consuming litigation if and when the marriage ends.
These marriage agreements also allow you to stipulate inheritance rights — for instance, by allocating assets to children from a previous marriage (if applicable) after your death.
What does a prenuptial agreement cover?
Prenups can outline a wide range of financial rights and responsibilities for both individuals entering a marriage, such as:
- Each spouse’s rights and obligations to property from the marriage or property brought into the marriage (buying, selling, using, or otherwise managing and controlling property)
- The ownership of certain property after separation, divorce, death, or another major event
- The division of marital debt after a divorce, (e.g., mortgage payments, credit card debt, etc.)
- A spouse’s entitlement to alimony — how much and for how long?
- How the prenup will interact with the terms of a will drafted by either party
- What will happen in the event of the death of one of the spouses — property, death benefits from life insurance, inheritances, etc.
- Which Maine laws will be used to interpret the agreement?
- How any future financial disputes between the parties will be resolved
- The right to homestead allowance, exempt property, and family allowance
Each of these areas can cause conflict during a divorce so having a prenup that covers these matters can help prevent legal action.
Can a prenup determine child custody and support in Maine?
Some notable separation issues cannot be addressed by prenuptial agreements in Maine.
When a married couple divorces, what happens to the children is often one of the most contentious issues. Maine law does not allow child custody and child support issues to be determined by prenups or any other marriage agreements.
In matters concerning children in Maine, their best interests take precedent over the interests of the parents — and these cannot be predetermined. A child’s best interests will depend on the precise circumstances at the time of separation.
Most importantly, children have the right to be financially supported by both parents until the age of majority (18) in Maine and neither parent can take this right away by agreement with the other parent.
If the parents separate, they have the right to make child custody and support arrangements between themselves but the court will need to approve them before the agreement becomes legally binding.
How do I create a legally enforceable prenuptial agreement in Maine?
According to the Uniform Premarital Agreement Act, a valid prenuptial agreement must be:
- In writing
- Executed voluntarily without duress or unfair pressure to sign
- Executed knowingly, whereby each party has adequate knowledge of the other party’s assets, financial resources and financial obligations
- Fair — so that one party is not left in a destitute situation or with an unreasonable burden
A married couple can modify or revoke a prenuptial agreement any time after they are married by putting the modification or revocation in writing. Both spouses must sign it.
When can the Maine courts refuse to enforce a prenuptial agreement?
In the majority of cases where the protocol has been followed for creating prenuptial agreements, the Maine courts will enforce them.
The main reasons for marriage agreements being invalidated by the courts are the following:
- One of the spouses did not sign the agreement voluntarily
- The agreement was severely unfair(“unconscionable”) at the time it was signed and:
- A spouse failed to fully disclose assets/debts
- The affected spouse did not waive the right to receive the other’s financial information
- The affected spouse did not know (and could not have known) the other spouse’s assets/debts in any other way
- A marriage is declared void (e.g., one of the spouses was already married)
Judges in Maine generally only consider prenuptial agreements unconscionable in extreme circumstances.
A prenup is most likely to be thrown out if, as a result of the agreement, one spouse would require public assistance to ease their financial situation. In such circumstances, a judge may overrule the stipulations of a prenuptial agreement and award alimony.
What is a postnuptial agreement in Maine?
A postnuptial agreement is the same as a prenuptial agreement but created after the marriage has already started.
A valid postnuptial agreement can cover the same elements as a prenup and the same requirements apply for it to be legally enforceable. Namely, it must be in writing, voluntary, fair, with full disclosure and full comprehension by both parties of the contents. The agreement must also be validly executed in front of a notary.
What does a postnuptial agreement include?
Postnuptial agreements generally cover the same areas as a prenuptial agreement and address the same financial aspects of the marriage, i.e.:
- How to divide property and other assets in the event of the marriage ending
- The payment of support — amount/duration
- The division of marital debt after divorce
- How assets will be transferred after the death of either spouse
- Provisions for assets to pass to children from a previous marriage
- How to resolve financial disputes in the event of divorce
Postnuptial agreements in Maine, like prenups, should not include provisions for child support or child custody as these decisions must be made at the time of separation in the best interests of the children.
Contact a prenuptial / postnuptial agreement attorney today
Whether you are preparing for marriage or preparing to leave a marriage, you need the assistance of an experienced Maine family law attorney.
At The Maine Divorce Group, we can represent you during the drafting and signing of such an agreement.
We can also help enforce an agreement if you are pursuing a divorce. Contact us by phone or directly online today to find out more about our services and to receive a case consultation.