If you are preparing for a divorce and have a prenuptial agreement (a “prenup”), it could play a central role in the process. While entering into a prenup isn’t necessarily about “planning for divorce,” it is common for prenuptial agreements to contain several divorce-related terms. With this in mind, when you sit down with a Seattle divorce attorney to discuss your options for moving forward, be sure to bring your prenuptial agreement.
5 Common Divorce-Related Terms in Prenuptial Agreements
Every prenuptial agreement is unique—and one of the primary benefits prenups afford is their flexibility. That said, most prenups will include many of the same types of terms. These include terms that come into play if one or both spouses decide to seek adivorce. For example, here are five common divorce-related terms in prenuptial agreements in Washington:
1. Determining Which Assets Are Subject to Division in a Divorce
Couples frequently use prenuptial agreements to address the ownership (and potential division) of their property. In Washington, the general rule is that both “community” and “separate” assets are subject to division in a divorce, unlike the general rule in many other states. If a couple does not want all of their assets to be subject to division in their divorce, they can override Washington’s general rule in their prenup. Some examples of common approaches include:
- Agreeing that each spouse will keep any assets they owned prior to the marriage
- Agreeing that each spouse will keep certain prized possessions or items with sentimental value
- Deciding in advance the character of the family home and what happens to it in the event of divorce
- Providing for ownership and control of a family-owned business in the event of a divorce
Again, these are just examples. To determine which assets are subject to division in your divorce, you will need to review your prenuptial agreement. As discussed below, it will be important to assess whether your prenup is enforceable under Washington law. If your prenup isn’t enforceable, Washington’s general rule for dividing community and separate assets will still apply.
2. Determining How Eligible Assets Will Be Divided
In addition to determining which assets are on the table, couples can also use their prenuptial agreements to determine how eligible assets will be divided. Washington law requires divorcing spouses to divide their assets in a “just and equitable” manner by default, but it leaves it up to couples (or the courts) to determine what is “just and equitable” on a case-by-case basis.
Instead of waiting until the divorce process, couples can agree in advance how their assets will be divided if the time comes. While there are limits on the enforceability of prenuptial agreements (more on this below), if a couple agrees that their eligible assets should be divided in a particular way, their agreement will stand in the event of a divorce.
3. Determining Responsibility for Outstanding Debts
In addition to addressing the ownership and division of their property, couples can also use prenuptial agreements to allocate responsibility for their outstanding debts. Here, too, couples have significant flexibility to make arrangements based on their specific financial circumstances. From student loans and credit card debt to first and second mortgages, it is not unusual for prenups to address responsibility for various types of liabilities. If you and your spouse have any outstanding debts, it is important to know whether they are addressed in your prenup.
4. Addressing the Issue of Spousal Maintenance (Alimony)
Next to property and debt division, spousal maintenance is another main divorce-related issue commonly addressed in prenuptial agreements. Property division, debt division, and spousal support are closely related, and taking a broad, all-encompassing approach is often best for both spouses in the long term. In many cases, couples (andhigh-income and high-net-worth couples in particular) will prefer to address these issues prospectively so they know what to expect if their marriage ends.
5. Requiring Mediation Instead of (or Prior to) Litigation
To help minimize their risk of facing divorce litigation in the future, couples who enter into prenuptial agreements often agree to mediate any divorce-related disputes.Divorce mediation can be an effective tool for finding an agreeable path forward when divorcing spouses are unable to come to terms on their own. As you weigh your options regarding your divorce, you will want to make sure you know what your prenup says (if anything) about mediation. If you and your spouse have already agreed to mediate, this could set the tone for the early stages of the process.
Is Your Prenuptial Agreement Enforceable in Washington?
While most well-drafted prenuptial agreements will have been written with enforceability in mind, as you prepare for your divorce, it will be worth assessing whether your prenup is enforceable under Washington law. There are two main issues that can render a prenup unenforceable in Washington:
- The agreement is unfair within the context of the couple’s financial circumstances; or,
- Either spouse did not “knowingly and voluntarily” sign the prenup.
An experienced Seattle divorce attorney will be able to assess your prenuptial agreement’s enforceability and then advise you accordingly. If your prenup is likely to be deemed unenforceable for any reason, this is a threshold issue that you will need to address before you proceed with the divorce process.
Discuss Your Prenuptial Agreement with a Seattle Divorce Attorney in Strict Confidence
Do you have questions about how your prenuptial agreement will impact your divorce in Washington? If so, our attorneys can review your prenup in detail and explain everything you need to know. To get started with a confidential initial consultation, give us a call at 206-784-3049 orlet us know how to contact you online today.