Hearts on a Prenup Agreement

Potential Issues with Prenuptial Agreements

Prenuptial agreements can make a lot of sense for couples who want to manage their potential risks if their marriage ends in divorce. A prenuptial agreement can also make the divorce process easier, as issues that can be controversial are decided in advance. However, having a prenuptial agreement in place is not a guarantee that things will turn out as you hoped in the event of a divorce. There are limitations to prenuptial agreements and potential issues can render your prenuptial agreement unenforceable. If you are considering entering into a prenuptial agreement, the best thing to do is seek guidance from an experienced prenuptial agreement attorney

There Are No Statutory Requirements

There is no specific statute in Washington State that governs what can and cannot be included in a prenuptial agreement, or what you must do to ensure that it is properly executed. Instead, there is an extensive body of case law that has been developed over decades that will govern whether or not your prenuptial agreement is enforceable. While this may allow for greater flexibility than in other states, the lack of clear statutory guidance means that it can be difficult for non-lawyers to know whether or not their prenuptial agreement complies with the law, and whether it will hold up in court. 

Prenuptial Agreements Will Be Scrutinized by the Court

Because there is no specific statute dictating the form and content of a prenuptial agreement, courts will review them closely, especially if they result in a property settlement that is significantly different from what might otherwise be considered typical. A court will consider the following factors in determining whether a prenuptial agreement is enforceable: 

  • Fairness. The agreement should be generally fair. Agreements that work to one spouse’s clear advantage while leaving the other comparatively impoverished may be considered invalid. 
  • Voluntary. The agreement must have been entered into by both spouses voluntarily. Courts will not enforce prenuptial agreements when they believe one spouse was coerced or pressured into signing. 
  • Opportunity to consult with counsel. Both spouses had the opportunity to consult with their own legal counsel prior to signing the agreement.  Ideally, both spouses would have full representation and their attorneys would sign off on the agreement as well. 
  • Full disclosure. Both spouses must disclose all assets before signing the agreement. Courts may not enforce prenuptial agreements where one or both spouses did not disclose all of their assets. 

These factors are not as straightforward as they may seem. Reasonable minds can disagree as to whether a particular prenuptial agreement is fair. A spouse may testify that they felt that they had to sign the agreement or the wedding would be called off. Forgotten assets can suddenly become problematic. For these reasons, and more, we recommend that you consult with a prenuptial agreement attorney before entering into an agreement. 

Prenuptial Agreements Cannot Be Used to Determine Child Custody or Support

Prenuptial agreements can be used to determine the division of property or spousal support in the event of divorce. The court will not enforce any provisions that deal with child custody or child support. This can come as an unpleasant surprise if you spent a lot of time negotiating these provisions of your agreement. In addition, it could have a significant impact on the outcome of your divorce if you structured your property settlement and spousal support based on how the children would be provided for. 

Suggesting a Prenuptial Agreement Can Strain Your Relationship

Another common issue with prenuptial agreements is that they can cause turmoil in a relationship. Some people are opposed to them in principle, while others see ulterior motives behind the suggestion. It can raise questions of trust and whether the spouse believes that the marriage will last. It can lead to an emotionally fraught conversation that can undermine your relationship at a time when you want to strengthen it.  

If you are considering a prenuptial agreement, the conversation should be handled delicately. You also do not want to raise the issue right before the wedding, as timing could be used as evidence of coercion. We recommend that you focus on why you are proposing a prenuptial agreement – to clarify the responsibility for debts and the distribution of assets, in a way that is fair and mutually beneficial for both spouses. This will likely be a difficult conversation and you should take the time to listen carefully to your partner’s concerns. You should also emphasize that this is something that you will work together on and that your partner always has the opportunity to seek their own independent legal counsel. 

One option that you and your partner may want to consider is to use a Collaborative law process to work through the details of your prenuptial agreement.  A Collaborative process would allow both partners and their attorneys to have a conversation together about all aspects of the agreement, ensuring that there is a high level of care and transparency around the discussion.   

Contact Seattle Divorce Services if You Are Considering a Prenuptial Agreement

A good prenuptial agreement can provide much-needed clarity in the stress of a divorce. Unfortunately, a problematic prenuptial agreement can lead to additional conflict and ultimately cost you additional time and money. The sooner you engage a prenuptial agreement attorney, the better your chances of getting the agreement you need. We can help you through every step of the process, from discussing whether a prenup makes sense for you to drafting and executing the actual agreement. Contact us online or call us today at 206-784-3049 to schedule a consultation.