A prenuptial agreement, or a “prenup,” can help you and your future spouse decide how to handle certain financial issues in your lives before they cause conflict and hurt feelings. This is true even if you believe you would never consider getting a divorce.
Prenuptial agreements are valuable because, according to Washington state law, all married couples, no matter how rich or poor, are jointly responsible for assets and debts acquired or accrued during marriage. Disagreements over finances are a major cause of marital discord, and not only if one or both spouses are greedy, controlling, or irresponsible about spending. Prenups are useful for couples who want to protect individual assets and create clarity on financial responsibilities prior to tying the knot.
Because prenups are unique to each couple’s individual circumstances, it is best to speak with a legal professional about what you should include in your prenup. A Seattle family law attorney can help you draft a prenup or review an agreement that your fiancé has presented to you.
Are you still unsure if a prenup is right for you? Read on to learn more about how prenuptial agreements can strengthen a marriage.
What Prenuptial Agreements Can Do
Marital property refers to all the income earned by either spouse during the marriage, all assets purchased during the marriage, and all property obtained with community funds. Marital debt refers to accounts, both individual and joint, opened during marriage.
Whichever spouse did the work, swiped the credit card, made the investment, or signed the promissory note does not affect whether the asset or debt is marital under Washington state law. The financial circumstance of one spouse belongs to both spouses.
Divorce is not the only time when the marital or nonmarital character of an asset or debt matters; it is also an issue in probate or bankruptcy cases. This is yet another reason why it is important to determine whether an asset or debt is marital in nature before marriage. A prenup can do that.
A prenuptial agreement is a legally binding agreement, though not necessarily ironclad for the reasons discussed below, in which you agree that a certain asset or debt belongs to only one spouse, i.e., is separate property when state law would ordinarily consider it marital property. This type of categorization, offered in a prenuptial agreement, can be helpful in the following situations:
- You have children from a previous marriage and want to prevent a probate dispute between your spouse and your children.
- You have student debt, and your fiancé’s parents will not give their blessing for the marriage unless you sign a prenup saying that your fiancé will never be responsible for your student debt before or after the marriage.
- You own a business and don’t want business debts to affect your spouse’s finances.
- You own a business jointly with partners, and you don’t want possible business disputes or a possible divorce to create a complicated legal matter.
- You own assets, including but not limited to real estate or a business, with family members, and your family will not give their blessing for the marriage unless you sign a prenup where your fiancé renounces their claim to these family assets.
- You have been divorced before, and in the rare event that you get divorced again, you want to preemptively resolve the conflicts that made your divorce so painful and costly.
It is also possible to write “if” clauses or conditions into a prenup. For example, you can say, “If the marriage ends in divorce within five years, the wife waives her right to spousal maintenance.” A Seattle family law attorney can advise you.
What Prenuptial Agreements Cannot Do
In your prenuptial agreement, you can agree to almost anything related to property, debts, or spousal maintenance. You can even include provisions about family pets since they are considered property. You can say, “All dogs adopted by the couple during the marriage are the separate property of the wife,” or “In the event of a divorce, the horse and its stable will remain the wife’s property, but she must compensate the husband for half of their value.”
Prenuptial agreements cannot, however, contain provisions related to children. A prenup is not the place to make decisions about co-parenting your future children; the court will not allow this.
For example, you cannot write a provision in your prenup that says you will adopt a child only after three unsuccessful IVF cycles or that the wife will only be entitled to spousal maintenance if the couple has become parents of at least one child through birth or adoption. You also cannot agree to waive child support in the event of divorce, even though it is a financial matter.
Washington courts can make decisions about parenting time or “visitation,” previously known as child custody, based purely on what is in the child’s best interests. It does not matter what the parents want, and it especially does not matter what the parents thought they wanted before the child was born.
Judicial Treatment of Prenups
Should a couple need a judge to intervene to enforce their prenuptial agreement, it helps to understand how Washington state courts determine enforceability, which involves applying a two-prong test.
First Prong:
Fairness: In the first step, the court assesses whether the prenup agreement is fair, specifically whether the court would enforce its terms in the absence of such an agreement. If the court decides the prenup is fair, the agreement will be enforced and not subject to further scrutiny.
Second Prong:
Voluntary and With Full Understanding: If the court determines that the prenup’s terms are unfair, it could still enforce the agreement if it passes the second test, which is whether it was made voluntarily and with full knowledge of its consequences. To demonstrate this, the following must have occurred:
- Both parties had legal representation independent of each other.
- There was evidence during negotiations of mutual understanding and consent.
- Each party fully disclosed their financial position, including assets and debts.
- The couple signed their prenup well in advance of the wedding, demonstrating that they were doing so of their own accord and not as a result of coercion.
A prenup will be more likely to be upheld if it satisfies the above conditions.
A Postnuptial Agreement Can Help if You Wish You Had a Prenup But Are Married
You might get married under the assumption that love conquers all, and prenups are for people who are more cynical and materialistic than you. But years later, you could find yourself arguing with your spouse about problems that a prenup can solve, and you may wish you had entered into one.
The solution, in this case, is to sign a postnuptial agreement, or a “postnup.” In Washington state, a postnup can address some of the same issues about property and debts that a prenup addresses. The most significant difference between a prenup and a postnup is that the parties are already married when they sign the document. There are other differences besides the timing, such as what a postnup includes versus a prenup, what the agreement covers, and the likelihood of enforceability.
What to Do if You Have Regrets About Signing a Prenup
Your financial circumstances might change considerably after signing a prenup, and you might wish that some of the property you designated as separate should be marital. You might also feel that you only signed a prenup to appease your domineering mother-in-law, for example, and now that she is gone, you are free to merge your finances with those of your lawfully wedded spouse.
Whatever the reason, it is possible to sign a new agreement in which you modify or nullify your prenup. In other words, the way to change a prenup is by signing a postnuptial agreement. It is important to consider that if you get a divorce, the court will usually enforce your prenup unless the judge believes that your spouse defrauded you or coerced you into signing it.
Find a Seattle Family Law Attorney to Create a Prenuptial or Postnuptial Agreement.
Despite their value and popularity, prenuptial and postnuptial agreements still cause confusion and sometimes fear. However, a family law attorney with experience drafting these marital contracts can explain in detail how helpful they can be in a marriage, whether you are entering into marriage or have been married for decades.
At Elise Buie Family Law, our compassionate family law attorneys understand what a big step marriage is. We want to help lay a foundation of open and honest communication so that your marriage is filled with love, understanding, and security. A marital contract can do that. Call our Seattle office today for help drafting or interpreting a prenuptial or postnuptial agreement or to schedule a consultation.
