Pre-Nuptial and Post-Nuptial Agreements
Since more than 40% of marriages in the United States end in divorce, it makes sense to consider entering into a pre-nuptial or post-nuptial agreement before getting married. These agreements are sometimes called "pre-nups." Pre-nup agreements are particularly important when one spouse has considerable assets or a high net worth.
If you enter into the agreement during the marriage, then the contract is called a marital agreement or post-nuptial agreement. An agreement made after the spouses decide to separate is often called the separation contract.
When you hire an attorney in Seattle, WA, to draft a pre-nuptial or post-nuptial marital agreement, your attorney should be familiar with Washington's complex body of law concerning the execution and enforcement of these contracts.
Your attorney can help you understand the reasons to adhere to procedural safeguards that allow the other side to have enough time to consider the agreement and retain independent counsel for advice. Your attorney should also be familiar with the estate planning issues and tax considerations that must be considered when the pre-nuptial or post-nuptial agreement is drafted.
Attorney for Pre-Nuptial and Post-Nuptial Agreements in Seattle
Contact an experienced family law attorney in Seattle, WA, at Law Offices of Shana E. Thompson to discuss the validity of a pre-nuptial or post-nuptial agreement. Let us help you draft the agreement and make sure the other side has enough time to consider the contract and find independent legal counsel before signing.
If the agreement is fair, the court will most likely approve the separation contract or prenuptial agreement and make it a part of the court's findings regarding the division of property or alimony.
Our Seattle divorce attorneys also represent clients who have signed a pre-nup or post-nup and are now contemplating a legal separation or divorce. We can help you understand ways in which the agreement might be challenged in court as unfair and how those accusations might impact the resolution of the case.
The attorneys at Law Offices of Shana E. Thompson represent clients in family law cases throughout all of King County and Snohomish County including Seattle, North Bend, Mercer Island, Bellevue, Ballard, North Seattle, Greenlake, Everett, Edmonds, Greenwood, Phinney Ridge, Bothell, Issaquah, Vashon Island and Maury Island. We also represent clients in family law cases in the city of Kent, WA, in the heart of the Seattle-Tacoma metropolitan area.
Call (206) 712-2756 to schedule a time to discuss your case.
Legal Definition of a Prenuptial Agreement in Washington
In Washington, a "prenuptial agreement" is defined as a contract entered into by two people, before their marriage, to decide how their property will be divided in the event of a divorce, legal separation, or annulment. If the parties wait until after they are married to enter into the agreement, then the written contract is called a “marital agreement” or "post-nuptial agreement.
When are Prenuptial Agreements Enforceable under Washington Law?
A prenuptial or marital agreement is more likely to be enforced by a court if the contract is fair. To be fair, both spouses must disclose information about their finances, assets, debts, and income prior to entering into the agreement. Provisions may also be needed for the less wealthy spouse in the event of a divorce.
Additionally, if the parties do not follow the agreement during the marriage, then the courts might determine that the entire agreement is unenforceable.
Keep in mind that the agreement cannot be used to decide child support or custody issues.
Benefits of Hiring a Local Attorney to Draft the Prenuptial Agreement
Drafting a pre-nupital agreement is not a good "do it yourself" project. Using an online form is not much better. Instead, consider the benefits of hiring a local and qualified attorney to discuss your situation and help you draft an agreement that protects your interests.
Your future spouse also needs to talk to an attorney before signing the agreement because that might become a factor that will be considered by the court when deciding whether to enforce the agreement.
Requirements for Pre-Nuptial or Post-Nuptial Agreement in Washington
In order to be legally binding in Washington, the pre-nuptial or post-nuptial agreement must be in writing and signed by the party being held to the agreement in order to reach the Statute of Frauds requirements, which apply to any agreement made in consideration of marriage as explained in RCW 19.36.010.
The two-prong test for the validity of a pre-nuptial or post-nuptial agreement is explained in a Matson, 107 Wn. 2d 479,730 P.2d 668 (1986).
First, a contract is reviewed for substantive fairness. If a prenuptial contract provides for a just and equitable award of community assets to both parties, it is valid. If a contract does not, then it still may be valid, but the court will examine the procedure by which it was created
If the court determines the history of the contract was procedurally fair, the prenup is valid. If, on the other hand, some procedural unfairness is found, then the contract will be deemed invalid.
Grounds to Challenge an "Unfair" Pre-nuptial Agreement
The agreement might be deemed to be unfair because of procedural problems including:
- entry into the agreement was not free and voluntary;
- the agreement was signed shortly before the marriage and without enough time to properly consider its consequences;
- the side wanting to enforce the agreement choose the attorney who drafted the contract;
- the other side did not have an independent attorney of their choosing to review the agreement;
- the other side did not understand the agreement; or
- full disclosure was not made concerning the amount, character and value of the property involved.
On the other hand, if the agreement is fair, the court will not refuse to enforce the agreement merely because one side did not avail him or herself of the opportunity to have the advice of independent legal counsel.
Washington Law on Pre-nuptial Agreements - Visit the Marriage Family Law Handbook developed by the Washington Courts to learn more about the legal implications of marriage and divorce. Find the answers to frequently asked questions such as: What is a prenuptial agreement? What makes the agreement enforceable? Do you need an attorney to make these kinds of agreements?
This article was last updated on Friday, October 27, 2017.