A Seattle Prenuptial Agreement Attorney Can Help You Understand Your Options
A prenuptial agreement is an agreement that a couple makes prior to their wedding about financial and other matters. A postnuptial agreement is really just the same agreement but made after marriage rather than before. To aid readability, I will simply refer to prenuptial agreements in this article, just understand that what I say generally applies to postnuptial agreements as well. Your Seattle prenuptial agreement attorney can tell you more about this when you meet, but either option is an important document to make the divorce process a bit less stressful.
Do I Need a Prenup in Washington?
Certainly, a prenuptial agreement is not necessary to get married. The state has plenty of laws in place to enable a court to make any needed rulings in case of a divorce.
At the same time, a prenuptial agreement can be useful in many ways. As described above, you may simply want to document what each of you came into the marriage with to make any divorce property calculations easier. Or you may want to change the rules a bit as to what you would want your marriage, as well as any eventual divorce to look like.
Then there as some specific issues that may be greatly aided by being addressed in a prenuptial agreement. If at least one person already has children from another relationship, it may be important to clarify inheritance rights in a way that a will would not be able to adequately cover (because a will can always be changed down the road). If one person has business interests that could be severely impacted by death or divorce, such as being in a partnership with his or her siblings, then some arrangements for maintaining that business interest might need to be carved out.
It is also possible that you would like some agreements in advance as to HOW you would go about divorce, such as agreeing to use mediation or collaborative divorce methods to keep the divorce more amicable. A Seattle prenuptial agreement lawyer at our firm can discuss these options with you further.
Common Property Issues for Washington Prenups
Most often, prenuptial agreements deal with property ownership issues. This can affect how property is managed during the marriage, as well as what may happen to it after the marriage ends, either through divorce or death.
In Washington State, property acquired during the marriage (except by gift or inheritance) is treated as community property, while property owned prior to the marriage (or received as a gift or inheritance) is treated as separate property. However, those labels are not as definitive as you might think. For instance, in a divorce, a court can decide to award separate property of one person to the other if it feels that is needed to achieve an overall fair distribution for any number of reasons. Even community property is subject to being divided in whatever way the court feels is fair, which is often NOT 50/50.
One purpose of a prenuptial agreement can be to more clearly define how property is going to be distributed so that both parties know up front what the rules are going to be. However, as I will discuss further below, there can also be a downside to making more rigid distribution rules which limit the court’s discretion. Make sure you discuss both the pros and cons of a prenuptial or postnuptial agreement with your Seattle prenuptial agreement attorney.
Types of Prenuptial Agreements — Documenting vs. Changing the Rules
There are two types of prenuptial agreements I commonly see people ask for. The first is primarily used to simply document what separate property each party is coming into the marriage with. It may also change the ownership of certain property, say agreeing that some separate property is converted to community property. This simplifies things down the road if there is a divorce – they can look back to this record to clarify what is separate and what is community property, as well as the values of the property at the time of the marriage.
The second type is what most people think of when they think of a prenup – this is an agreement meant to actually change the distribution rules in case of divorce or death. This agreement might maintain as separate some future property that would normally be treated as community property. It might include an agreement on how much spousal support would be paid if the parties divorce, and it may even address other issues as well.
As our Seattle prenuptial agreement attorneys can go over with you, one needs to be careful entering into this type of agreement, as it changes what can happen down the road at a time when circumstances may not be known. Signing this type of agreement may waive rights that could turn out to be important later on. Very often, one party or the other will in fact be disadvantaged by this type of agreement.
Do Your Prenup Right!
Because prenuptial agreements can change the rights otherwise available under the law, the courts look closely to see if the agreement was done properly. There are various mistakes that can be made, which will allow the court to set aside the prenup. Your Seattle prenuptial agreement attorney can help you avoid these problems by creating a successful prenup. Some of the things the court will look at include whether one party was pressured into signing the agreement, whether they did not have the advice of an attorney when signing, whether the agreement is too one-sided, and finally, whether the agreement was signed too close before the date of the marriage.
If the agreement is signed shortly before the wedding, that creates an inference that any disadvantaged party may have felt pressured by the impending wedding. If your wedding date is too close, you may want to wait until after the wedding to sign it (making it a postnuptial agreement) so it is clear that neither party felt pressured by the timing of the wedding.
Working With Your Seattle Prenuptial Agreement Attorney
Most typically, when preparing a prenuptial agreement, each party hires a lawyer to assist them. Usually, the attorney for one party will draft the agreement and then send it over to the other attorney for review. Both attorneys take turns consulting with their clients and sending out revised drafts based on those discussions and what they believe is in their client’s best interests. Unfortunately, this can create an adversarial atmosphere at a time in the couple’s lives when they are particularly NOT looking to be adversarial, they are just looking to get married!
For that reason, I like to recommend a collaborative process for preparing the prenuptial agreement. Instead of the two attorneys working separately, just looking out for their own clients, you can have two attorneys who are specifically trained in collaborative work 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 collaboratively trained attorneys for your partner to talk to.
Are Prenuptial Agreements Enforceable in Washington State?
Prenuptial agreements are essentially contracts. Contracts are deemed “enforceable” when a court recognizes them as legally binding agreements and compels the parties to honor their terms. Generally speaking, prenuptial agreements are enforceable in Washington State. To ensure that your prenuptial agreement is enforceable, however, you must take certain precautions. Otherwise, you risk having a court find your prenuptial agreement to be invalid and unenforceable, something that happens more often than you might think. Working with a Seattle prenuptial agreement attorney is the best way to ensure that your agreement will be enforceable.
A Two-Pronged Test
In determining whether a prenuptial agreement is enforceable, Washington courts will apply a two-pronged test:
- Is the prenuptial agreement fair?
- Did both spouses enter into the prenuptial agreement knowingly and voluntarily?
If the agreement fails either of these prongs, the court will deem your prenuptial agreement unenforceable, and you will then be involved in the distribution of your assets.
The First Prong: Fairness
In considering whether the agreement is fair, a court will consider what it would do if there were no prenuptial agreement in place. For example, a court would likely deem a prenuptial agreement unfair if all significant assets went to one spouse and left the other with essentially nothing. There is obviously a lot of “gray” when considering what might be fair or unfair when drafting your prenuptial agreement, and it can be difficult to anticipate how a court might rule. By working with an experienced Seattle prenuptial agreement attorney, you can leverage their experience to draft an agreement that you are confident will be upheld in court if that becomes necessary.
The Second Prong: Knowingly and Voluntarily
Assuming that the agreement is fair on its face, you also need to demonstrate that both parties entered into the prenuptial agreement “knowingly and voluntarily.” Obviously, this means that one spouse or the other cannot have been coerced into signing the agreement. That said, coercion can include subtle pressure to sign the agreement, such as an implied threat that the marriage will be canceled if the other spouse refuses. As a result, there are several factors that you should consider when entering into a prenuptial agreement that can demonstrate that both spouses entered into it knowingly and voluntarily:
- Timing is important: the execution of the agreement was well in advance of the wedding.
- Transparency: both spouses have fully disclosed all assets, sources of income, and debts or other potential liabilities
- It’s a process: Active documented negotiations to demonstrate that there was a give-and-take for both spouses and that the agreement wasn’t forced upon either spouse.
- Legal representation: Both spouses had the opportunity to engage their own attorney and were even encouraged to do so
One of the ways that a Seattle prenuptial agreement attorney can help is by documenting the entire process so that you have a clear record that both spouses entered into the agreement knowingly and voluntarily.
Can I Draft My Own Prenuptial Agreement? Or Am I Required to Hire a Lawyer?
There is no legal requirement in Washington state that the prenuptial agreement is drafted by an attorney. From a practical standpoint, however, prenuptial agreements are typically complex agreements that deal with substantial assets. Should you fail to draft an appropriate agreement or sufficiently document it, you risk a court declaring that it is unenforceable when you need it most. This means that your property settlement will have to proceed through the court, which is the situation you were hoping to avoid.
If you are considering a prenuptial agreement, we recommend that you invest in engaging a Seattle prenuptial agreement attorney. They can provide you with the counsel you need and ultimately help you draft an agreement that protects your interests and will withstand any scrutiny in the event that it is challenged. Finally, we should note that a court is much more likely to enforce your prenuptial agreement if both sides are represented by their own legal counsel.
Issues That Can Be Addressed in Your Prenuptial Agreement
While the focus of a prenuptial agreement is typically on how assets are divided upon divorce, it can cover many other significant issues. For example, your prenuptial agreement can include the following:
- A requirement that one or both spouses maintain life insurance coverage
- A waiver of any right to alimony
- Provisions governing the distribution of property in the event of death of one of the spouses
- Provisions concerning compensation for management of separate assets
- Clarifications regarding the ownership and management of pre-marital assets
- Provisions governing the payment of alimony, including the type, amount, and duration that will be paid in the event of divorce
Every situation is unique, with spouses bringing their own interests to the marriage. An experienced Seattle prenuptial agreement attorney can review your situation and work with you to develop a forward-looking agreement that meets your specific needs.
Child Custody and Child Support
While a prenuptial agreement can cover many issues beyond property distribution, Washington state law does not allow them to control child custody and support. Therefore, the court will have final authority over issues involving custody and support regardless of what your prenuptial agreement might say. You can still include them if you and your spouse agree to abide by them, but if challenged, these provisions will be considered unenforceable.
Is a Prenuptial Agreement Right for Me and My Spouse?
Prenuptial agreements aren’t only for the lavishly wealthy – they are far more common than you may think, and couples who fall into one of the following categories may want to consider getting one:
- One or both spouses are bringing considerable debt into the marriage
- One or both spouses are bringing valuable personal property or real estate into the marriage
- One spouse is quite wealthy and the other spouse is comparatively poor
- One or both spouses have been previously married
- One or both spouses already have children
If you are wondering whether a prenuptial agreement is right for you, a Seattle prenuptial agreement attorney can discuss how it can protect your interests and simplify the divorce process.
Call Seattle Divorce Services Today To Discuss Your Options with a Seattle Prenuptial Agreement Attorney
If you want to develop a prenup or postnuptial agreement with your partner, discuss your divorce and family law concerns with a Seattle prenuptial agreement attorney. To schedule an appointment, we can be reached through the form on our website, or you can call us at 206-784-3049.