Prenuptial Agreements

Congratulations on your engagement! One of the most exciting events in a person’s life is an engagement to be married. Yet, amid all the pictures and planning, most people don’t stop to consider the legal implications of marriage. If you’re planning to marry, a prenuptial agreement is probably a good idea.

What Is a Prenuptial Agreement vs a Post-nuptial Agreement?

A prenuptial agreement is a contract two people sign before they marry, and a post-nuptial is essentially the same contract signed after marriage. Both contracts are legally enforceable plans for how the future spouses will divide and manage their assets during the marriage, if they divorce or separate, or if a spouse dies.

Generally speaking, prenuptial agreements address the assignment of property as separate or community. Property includes real property like houses, land, and condos, as well as personal property like furniture, art, or your prized POP! Figurine collection.

Prenuptial agreements have to be finalized before a marriage occurs. They are entered into “in contemplation of marriage,” meaning that the parties sign the agreements with the understanding that they are going to marry the other person. They become effective as soon as the parties are legally married.

Am I required to have a Prenuptial Agreement?

No. There is no requirement that people execute a prenuptial agreement prior to marriage. However, if any of the following apply, a prenuptial agreement would be advisable.

  • One or both spouses are bringing major debt into the marriage.
  • One or both spouses are bringing valuable real or personal property into the marriage.
  • One or both spouses own/operate a business.
  • One spouse is much wealthier than the other.
  • Spouses’ first language is not the same.
  • One spouse is significantly more educated.
  • One or both spouses have been married before.
  • One or both spouses already have children either from the current relationship, or a previous relationship.

This list is non-exclusive. If you have any doubts about whether you should enter into a prenuptial agreement, chances are you should have one. Don’t leave prenuptial agreement planning to the last minute. Schedule a meeting with CLS to evaluate your prenuptial needs.

Will my Prenuptial Agreement be valid in court?

The Washington Legislature has declined to enact any laws allowing people to affirmatively alter their marital rights and duties through a contract. In that void, the courts have, through a series of cases, outlined a framework for analyzing prenuptial agreements in Washington State. That analysis is detailed below, but the long and the short of it is that Washington Courts may, at times, refuse to enforce prenuptial agreements, commonly known as “prenups.”

The court’s primary concerns with prenups are that they are often entered into hastily, that the financially disadvantaged spouse doesn’t really know what they’re signing, and that a spouse may only sign because their options were to sign the prenup, or have the wedding called off. Inequities resulting from the stereotypical and increasingly anachronistic and patronizing image of a sophisticated, wealthy man taking advantage of a naïve, penniless woman are what courts are keen to prevent.

To prevent your agreement from being thrown out by the court, make sure you’ve met every one of these four factors.

  1. Each party must have their own attorney;
  2. The parties must conduct (and document) active negotiations;
  3. Both parties must fully disclosure of all their assets, income, and debt; and
  4. They must execute the prenup well in advance of the marriage itself. This is to ensure that neither party feels pressured to sign out of fear that the impending marriage will be cancelled. A good rule of thumb is to have the prenup signed around the same time save-the-date’s go out.

If this all sounds very squishy and vague, that’s because it is. Basically, if the judge doesn’t like your prenup, for whatever reason, they can very easily find a way to throw it out. There are things you can do to decrease the likelihood of that happening, but at the end of the day, the judge will have relatively unfettered discretion when it comes to upholding your prenup.

Why should I get a prenup?

Negotiating a prenuptial agreement forces families to have conversations about money before they get married and before they are presented with the very real, very difficult financial issues that families invariably face. Having a mutual understanding about money issues before problems arise helps build a solid foundation that reduces conflict.

The unfortunate reality is that the vast majority of couples often fail to address even the most basic financial questions prior to marriage. The result is that shortly after getting married, couples find that they don’t necessarily agree on money issues – and that causes a lot of stress on the relationship.

Granted, you don’t need a prenup in order to address these financial issues after you’re married. But going through the process of executing a prenup will ensure that a lot of these questions will be discussed prior to them being an emergent issue. It’s a lot easier to talk about these issues before everyone starts feeling resentful. And talking about these in advance can go a long way toward avoiding the resentment altogether.

Not only will you enter the marriage with a more aligned view of your shared financial future, you will also have established a framework for how to communicate in a healthy way about the financial issues that will inevitably arise.

People often criticize prenups as being for couples who aren’t committed to marriage or who already have one foot out the door. But the reality is that prenuptial agreements – and the conversations they start – actually increase the likelihood that a marriage will be better and last longer.

I have found that families that have these hard conversations early, they don’t revisit my office for a divorce.

What Issues Can a Prenuptial Agreement Cover?

Prenuptial agreements in Washington are intended to protect and divide property and to memorialize agreements about spousal maintenance (alimony). The following is a non-exclusive list of issues a prenuptial agreement can include:

  • the continued ownership and management of existing and future assets,
  • the adequacy of compensation for
  • management of separate assets,
  • a requirement that one or both spouses maintain life insurance,
  • the amount, type, and duration of spousal maintenance to be awarded in the event of a divorce,
  • the waiver of the right to spousal maintenance, and
  • the disposition (allocation) of property if one of the spouses dies or if the parties separate, divorce, or if some other event occurs.

Can a Prenuptial Agreement Determine Child Custody and Child Support in Washington?

The parties are free to include their own agreement about child custody and child support in their agreement. If they divorce and no one challenges the prenuptial agreement, the custody and support provisions will be self-enforced. However, Washington law does not permit custody and support to be legally predetermined in a prenuptial agreement. The Washington family courts retain the ultimate authority to decide custody based on the best interests of the child, and to calculate support based on the applicable financial guidelines. Therefore, if the prenuptial agreement is challenged, the court will decide these issues independently and without referring to the contents of the agreement.

Can I Change or Terminate a Prenuptial Agreement After Marriage?

Yes. To modify an existing prenuptial agreement after marriage, the parties must mutually consent to the modification either through their conduct (meaning, their behavior and apparent acceptance or rejection of the modification) or through a written agreement. A written agreement is preferable.
On the other hand, to rescind (terminate) a prenuptial agreement, the parties will need a brand new contract that contains an offer to rescind by one spouse, and acceptance of that offer by the other spouse.

Working With Your Attorney

Most typically when preparing a prenuptial agreement, each party hires an attorney to assist them. Usually the attorney for one party will draft the agreement and then send it to the other attorney for review. Both attorneys take turns consulting with their clients and sending out revised drafts based on those discussions.

To prevent these negotiations from becoming adversarial, I typically use a collaborative process for drafting and revisions. Instead of the two attorneys working separately, just looking out for their own clients, both attorneys meet with both clients together. Together they can have the clients define their goals for the agreement and are able to help them resolve any disagreements about terms. This type of process helps the clients work in alignment rather than at cross purposes. If you would like, we can recommend some attorneys for your partner to consult.