Should We Consider a Prenuptial Agreement?

If you are planning to marry, you may want to discuss whether a prenuptial agreement would be useful to you. Prenups are useful for any couple that would like to define the outcome in advance should there be a divorce or death of one of the parties down the road. They may just want to have more certainty up front, or they may actually desire a different result than the law would normally provide.

Couple collaborates on a prenuptial agreement

A Prenuptial Agreement Offers Protection for Washington Couples

While couples just entering into marriage are not normally thinking about the potential for divorce, a thoughtful couple should recognize that it is a possibility. Just as they will be making wedding vows to care for and look out for each other, marriage can be a time to think more carefully about how they can realize those goals. One way is by designing an agreement that looks out for both during the marriage as well as in the case of divorce.

As an example, couples may want to have an agreement up front on spousal support at divorce if one of the parties is going to give up a career in support of the career of the other (one person’s career is going to require moves that will impact the career of the other, or one spouse is going to focus on care for children and home). Couples also may wish to define who can decisions about certain assets during the marriage. Some couples may prefer a less “joined at the hip” relationship than marriage traditionally means and maintain separate assets and accounts. Or they may want to opposite and desire to convert separate assets they are entering the marriage with into community assets.

How to Create a Prenup

However, at Seattle Divorce Services, we do not recommend the traditional approach to drafting prenuptial agreements. Typically one party has hired an attorney to draft an agreement, and then that agreement is presented to the spouse to review. That is an aggressive approach that tends to create conflict at a time when the parties are very much in love and conflict is the last thing they want. This approach gives the appearance of one party trying to dictate terms to the other, even if that is not the intent.

The Collaborative Approach to Drafting a Prenuptial Agreement

Instead, we prefer to take a collaborative approach to prenuptial agreements. This involves having each party work with an attorney who is trained in collaborative process (the opposite of the adversarial process most attorneys are used to). A good way to start is meeting with the attorneys together to get some advice on how the law treats marriage and divorce. This gives the couple a baseline from which to consider in what ways they might want to do things differently than the courts might. The attorneys can also discuss the wide variability of court decisions, so the couple can discuss areas where they might be more comfortable with a more certain outcome in advance.

The prenuptial agreement attorneys can then cooperate in meeting with both clients together to discuss their mutual goals for their marriage and help them design a plan both for the marriage and beyond that both parties have had a hand in creating, and that is designed to benefit both. The attorneys can then cooperate in drafting an agreement based on the decisions made by the couple, and present it back to both together for review.

This approach allows the agreement to reflect the desires of the couple, rather than the desires of one party or the other individually. In a collaborative process the emphasis is on listening because it recognizes that there will not be an agreement if the other party is not happy with it.

How a Prenuptial Agreement Can Help if a Spouse Dies

Prenuptial agreements can also useful in the event of the death of one party. For instance, a later in life couple may want to provide that their assets remain separate so that each spouses adult children can inherit their assets, rather than having everything pass to the surviving spouse and then to the children of that spouse alone. While wills can also take care of those kinds of provisions, either party can change their wills, but the prenuptial agreement stands as a contract that neither can void on their own. It is worth noting that prenups written by estate planning attorneys tend to focus more on what happens at death, while prenups written by divorce attorneys tend to focus more on what happens in a divorce.

When a Prenup Turns into a Postnuptial Agreement

Keep in mind that if the wedding date is close, it may be better to sign or reaffirm the agreement after the marriage, making it a postnuptial agreement. Courts will often reject prenuptial agreements that were signed too close to the wedding date, as there is a presumption that such an agreement may have been signed due to the pressure of the approaching wedding, rather than being fully voluntary. This can also take pressure off of the couple to complete their agreement while also dealing with all of the wedding arrangements. An agreement that the couple has taken the time to craft carefully will be the best agreement they can design. One done hurriedly is more likely to not be well thought out and thus serve the couple less well down the road.

Whether you are considering a prenup or post-nuptial agreement, it never hurts to at least discuss your options with an attorney. Contact our firm to speak with an experienced Seattle prenuptial agreement attorney today.