Creating a Prenuptial or Postnuptial Agreement in Washington
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 create 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 be wanting to document what each of you came into the marriage with to make any divorce property calculations easier. Or you may be wanting 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 which 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 a divorce, such as agreeing to use mediation or collaborative divorce methods to keep the divorce more amicable. One of our Seattle prenuptial agreement attorneys 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, 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. 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 your Seattle prenuptial agreement attorney 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 the circumstances that will exist down the road 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. 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 an attorney 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 where 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.
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.