Do prenuptial agreements safeguard against state divorce laws?

Marriage and divorce have long been a jurisdictional matter for the states. In the wake of the U.S. Supreme Court’s ruling on same-sex marriage, however, at least one aspect of family law has become a federal, constitutional right.

Given that precedent, a recent article questions whether it might be time for a national divorce law. Indeed, the outcome of property division, child support and custody, and alimony disputes can vary greatly depending on particular state law. We live in a mobile society, and chances are that many Americans will live in more than one state during their lifetimes. As an equitable distribution state, Maryland courts will endeavor to divide marital property in a way that is fair, rather than following an exact formula of dividing property in half. Yet couples who were married in Maryland might move to one of the nine community property states, where property could be divided in a much different way.

Until uniformity is reached, a prenuptial agreement might be a wise option for many couples. Admittedly, some couples may hesitate about raising this issue before marriage. However, our law firm focuses on a variety of family law matters, including prenuptial agreements. We have seen how such contracts can provide crucial protections -- and peace of mind -- to couples in a variety of situations.

For example, individuals with substantial real estate properties might want to protect those assets from the marital estate. Other individuals may wish to avoid commingling investments or business ownership stakes. Although inheritances are generally not included within the definition of marital property, interest on securities or investments might be. In addition, individuals with children from another marriage might want to ensure that their estate planning choices are not unintentionally circumvented by a second marriage.

With the help of an attorney, discussing financial matters before marriage does not have to be an unpleasant affair.

Source: Forbes, "Is It Time For A National Divorce Law Too?" Laurence Kotlikoff, July 12, 2015