What is a pre- or post-nuptial agreement?

An agreement a couple creates attesting to certain aspects of their marriage, including finances, property, and other matters. A postnuptial agreement only differs in that it is created after marriage rather than before.

Protecting your future shouldn’t create tension: work together, not against each other!

Create your agreement using the Collaborative process.

For readability’s sake, we will simply refer to pre-nuptial agreements on this page, but what follows generally applies to post-nuptial agreements as well.

Topics & Coverage

Why should I have a prenup drafted?

Prenuptial agreements aren’t just for the lavishly wealthy – they are far more common than you may think. Though Washington state has plenty of laws which enable the court to make all necessary rulings in case of a divorce, you or your fiancée may wish to…

  • Assets: Document or clarify the ownership and management of your pre-marital assets, or create provisions concerning compensation for management of separate assets.
  • Rule Changes: Change certain default court rules which impacts how the State views your marriage.
  • Divorce Planning: Outline how you would potentially go about divorce, such as agreeing to use mediation or Collaborative divorce methods to keep the divorce more amicable; waiver any right to alimony; create provisions governing the payment of alimony (including the type, amount, and duration that will be paid in the event of divorce).
  • Life Planning: Require that one or both spouses maintain life insurance coverage or create provisions governing the distribution of property in the event of death of one of the spouses.

Couples who fall into one of the following categories may strongly consider getting a prenup:

  • One or both spouses…
    • are bringing considerable debt into the marriage
    • are bringing valuable personal property or real estate into the marriage
    • have been previously married
  • Unequal Finances: One spouse is quite wealthy and the other spouse is comparatively poor.
  • Children from a previous marriage: 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).
  • Business Interests: If they could be severely impacted by death or divorce, such as being in a partnership with their siblings, some arrangements for maintaining that business interest might need to be carved out.

Crafting Your Pre-Nup

We recommend using the Collaborative method when creating your pre-nuptial agreement.

Though we do also offer the traditional prenup process, we like to caution clients that it can, unfortunately, create an adversarial atmosphere at a time when a couple is not feeling particularly adversarial– they are just looking to get married! The Collaborative process helps fiancées work in alignment rather than at cross purposes, effectively eliminating communication barriers and easing tension, often fostering resolutions at a faster rate!

COLLABORATIVE

Rather than two soon-to-be-wed partners communicating with each other indirectly via their attorneys, the Collaborative method uses joint sessions to help partners draft their final agreement.

  1. Each partner hires a Collaboratively-trained attorney.*
  2. The fiancés and their attorneys schedule a few joint sessions to use to work on the agreement altogether. These sessions allow the clients a space to collaboratively define their goals for the document and provides a supportive & informed space resolve any disagreements about terms.
  3. Both parties and their attorneys sign the agreement once it is conclsuively drawn up.

*Collaboratively-trained attorneys must be hired on each side of the couple in order to proceed with the methodology. If you would like, we can recommend some collaboratively-trained attorneys for your partner to talk to. There is no additional cost for a Collaborative Prenup versus a traditional one. 

TRADITIONAL

  1. Each party hires an attorney to assist them in creating their pre-nuptial agreement (see the dropdown above describing the risks of drafting your own-prenup).
  2. One party’s attorney typically will draft the agreement and then send it over to the other party’s attorney for review.
  3. Both attorneys then 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.
  4. Once a final draft is agreed upon by both parties, both fiancés will sign the document with the addition of a witness or notary. If the couple wants to strengthen the legal validity of their prenup further, they can have their respective attorneys sign the document as well.

Can my fiancé and I draft our own pre-nup? We are in agreement on everything...

This is highly discouraged for two main reasons:

  1. If a prenuptial agreement is not drafted by an attorney, signed by the fiancés’ attorneys, or if one fiancé did not have counsel during the drafting and signing process, it is unlikely the agreement will hold up in court, should it be presented. While that may seem like a far-fetched situation to many, the ability to enforce your pre-nuptial agreement in court is the only way once can ensure it holds any actual, legal weight.
  2. If you are considering signing a prenuptial agreement, you may be, in fact, considering signing away various liberties and rights which you weren’t even aware you had. Even if you see nothing wrong with an agreement put in front of you, it is in your best interest to receive aid from a legally-trained professional who can inform you possible consequences of certain provisions you were likely completely unaware of.

This is why we recommend that you invest in engaging a Seattle prenuptial agreement attorney that can help you draft an agreement that protects your interests and will withstand any scrutiny in the event that it is challenged.

Can my fiancé and I share an attorney?

No, one attorney can only provide legal advice and therefore, represent, one party/person in a given matter. This is an ethical ruling that reflects the individual nature of the attorney-client relationship. An attorney’s role involves serving as a person’s legal advocate. This entails a degree of bias which nullifies the attorney’s ability to act as a neutral third party in a matter (with the exception of mediation services).

Pre-Nups & Property

Prenuptial agreements often deal with property, addressing potential scenarios and questions of ownership during, and potentially after, the marriage.

In Washington State, property acquired during a marriage (except by gift or inheritance) is treated as community property, while property owned prior to a marriage (or received as a gift or inheritance) is treated as separate property. However, those labels are not definitive.

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. Prenups can also address the fate of property in the event of a spouse’s death.

Two Types of Pre-Nups

Documenting vs. Changing the Rules

There are two types of prenuptial agreements we commonly see people ask for.

Documenting

Primarily used to document the separate property each party is coming into the marriage with. It may change the ownership of certain property (eg. agreeing some separate property is converted to community property). Simplifying the potential divorce process, couples can use the pre-nup to clarify what is separate vs. community property, as well as the values of the property at the time of the marriage.

Changing the Rules

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. It might maintain any future property earned as separate what would normally be treated as community property, or establish an agreement on how much spousal support would be paid if the parties divorce, etc.

As our 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.

Looking to draft a fair, clear pre- or post-nup that provides legal clarity and strengthens mutual trust?

  • We advocate for your interests while keeping discussions collaborative.
  • We ensure full compliance with Washington state law so your agreement holds up in court.
  • We guide you through sensitive financial conversations with clarity and respect.

Ensuring Enforceability

Why it Matters & The Two-Prong Test

Contracts are deemed “enforceable” when a court recognizes them as legally binding agreements which compels the parties to honor its terms. Our attorneys take all the necessary precautions to ensure that your prenuptial agreement is enforceable, should it become necessary during a divorce.

Since pre- & post-nups can change what rights a spouse has otherwise available under the law, the courts look closely to ensure it was drafted properly. While they are generally enforceable, various mistakes can be made which lead the court to deeming them invalid and unenforceable (something that happens more often than you might think). The best way to try and avoid this outcome is to work with a prenuptial agreement attorney. We can help you by creating a successful prenup that will pass the court’s two-pronged test with flying colors.

Why will signing my pre-nup too close to the wedding affect enforceability?

The court could presume that the timeframe imposed pressure on any disadvantaged party. If you and your fiancée are rushing to get your agreement signed, it might be better to wait until after the wedding to sign it (making it postnuptial) so it is clear that neither party felt pressured by the timing of the wedding.

If my spouse and I drafted our own pre-nup, will that affect enforceability?

A court is much more likely to enforce your prenuptial agreement if both sides are represented by their own legal counsel. Though there is no legal requirement in Washington state that prenuptial agreements be drafted by an attorney. From a practical standpoint, prenuptial agreements are typically quite complex and deal with substantial assets. Should you fail to adequately 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 a situation one hopes to avoid. For such reasons, it is highly recommended each person obtain counsel when creating a pre- or post-nuptial agreement.

The Two-Prong Test

Washington courts will apply a two-pronged test to determine a pre-nups enforceability. 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. 

1) Is the prenuptial agreement fair?

Fairness

A court determines fairness by considering how it would rule over the divorce if there were no prenuptial agreement in place.

For example, a prenuptial agreement that dictated all significant assets go to only one spouse would likely be deemed unfair. This measurement of fairness obviously has a lot of gray area, and it can be difficult to anticipate how a court might rule which is why attorney involvement in prenup proceedings is highly recommended.

2) Did both spouses enter into the prenuptial agreement knowingly and voluntarily?

Knowingly & Voluntarily

Both parties must have entered into the prenuptial agreement “knowingly and voluntarily”, meaning that neither spouse was coerced into signing it. Coercion can include subtle pressure to sign, such as one spouse implying that the wedding will be canceled if the other refuses to sign. Therefore, several factors should be considered to satisfy this prong: 

  • Timing: 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 an 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. 

Meet with a Seattle Prenuptial Attorney and Set Up a Solid Foundation for Your Marriage

Crafting a document that suits both you and your partner’s needs doesn’t have to be a confrontational process, nor a drawn out one. Contact our office today to have your ideas for the future solidified and met with enthusiasm, understanding, and care.

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