Though most people marry with the intention of staying married until death do them part, they still might want an agreement, such as a prenuptial agreement or postnuptial agreement, to outline what would happen in the event they divorce. With sensitive information out in the open and a roadmap in place for a dissolution should there be one, the potential for surprises — surprises that often lead to contention — is minimized.
It’s important to note that neither a prenup nor a postnup is a predictor of divorce. Though prenuptial agreements are arguably more well-known and more common than postnuptial agreements, both can serve to strengthen a marriage, given how they require relationship partners to put their cards on the table for each other to see, offering transparency and peace of mind. Despite their similarities, there are a few significant differences between the two.
Timing
There are distinct differences between a prenuptial agreement and a postnuptial agreement, the most notable of which is when a couple would create them. More specifically, a prenup is an agreement that a couple enters into before marriage. On the other hand, a couple enters into a postnup after a marriage is certified and while the couple is still married.
What the Agreements Cover
Prenuptial agreements allow a couple to create a plan for what to do in the event of divorce, even if they never end up using it. A prenup is typically used to protect and divide property, meaning that each partner can clearly define what would happen to their respective (separate) property or, in some cases, mutual (community) property in the event of divorce.
A prenuptial agreement can make the divorce process significantly less stressful since many of the most commonly disputed issues are already addressed and agreed upon by the couple. In a prenuptial agreement, you can declare, for example, whether you want any property you bring to the marriage to become communal property, which can make divorce easier if you ever separate.
For some people, a prenup can be a way to avoid paying off their partner’s previous debts, those accumulated before marriage, especially debt like student loans. If one spouse has remarried, they can also use it to address assets, property, debts, spousal obligations, or children from their previous marriage, including their inheritance. (A prenup should not be confused with a comprehensive estate plan, which can address inheritance and so much more.) Regardless of what a prenup addresses, it can make a couple’s life easier, beginning by shining a spotlight on a couple’s existing financial picture. That way, there should be no surprises after the wedding.
Postnuptial agreements are similar to prenuptial agreements in what they can cover, but they can also account for changing circumstances that occur after the marriage. A couple may create a postnuptial agreement to outline how they would like their assets divided, and the terms of any spousal maintenance they agree to should they divorce. It can likewise establish what assets each person has and has brought to the marriage and what to do with them if the couple separates or divorces.
Postnuptial agreements are also useful if one person finds that their spouse is not as responsible with financial matters as they believed they would be or if one partner decides to become a full-time caretaker for their children and leave their career. In both scenarios, the couple’s financial circumstances have changed in ways they may not have foreseen or understood prior to marrying. A postnup can be a way to contingency plan and address concerns in the future due to these changes.
Enforceability
The enforceability of a prenup or postnup is critical. Though Washington courts recognize both documents for purposes of contingency planning, it is important to be mindful of the circumstances surrounding their creation to increase the likelihood a court will find them valid.
Prenups are typically more trusted than postnups due to the timing of when couples create them. In the eyes of the court, there is less room for coercion and more potential for independent action and expression of desire prior to marrying.
The earlier a couple signs their prenuptial agreement, the more likely a court is to validate the agreement since the couple should have had ample time to understand and review the agreement as well as hire their own lawyers to advocate on their behalf. It is advisable that each party to the agreement retains their own Washington state prenuptial agreement attorney to review the document and represent their individual interests. At EBFLG we require both parties to be represented to better ensure enforceability of the agreement.
There are generally two ways to test the enforceability of a prenup: (1) the fairness of the agreement and (2) the voluntary nature of the agreement. If a prenup is fair, meaning that it is similar to how a court might rule if it did not exist, then the prenup would likely be deemed enforceable.
However, a prenuptial agreement may still be enforced even if it is deemed unfair by the court if the couple entered into it voluntarily and knowingly. Individuals can prove they entered into a prenup voluntarily and knowingly by showing documented negotiations or signing the prenup well before the marriage was established. Such actions would indicate both parties’ willingness to enter the agreement.
Similar guidelines are in place for postnups, which must also be fair, voluntary, and made with informed consent. Having separate legal counsel represent a couple can similarly demonstrate that a postnup was made without coercion. Demonstrating this is especially key for postnups, which lack some of the other identifiers that a prenup might have, such as signing the document well before the marriage.
Regardless of whether you intend to sign a prenup or a postnup, utilizing the collaborative process can be an effective way to further its enforceability. The collaborative process puts all parties involved on the same team instead of pitting them against each other.
In general, collaborative law communications are privileged. However, as part of the collaborative process, communication and documentation could be admissible in court if need be and under certain circumstances. These limits on privilege can help the court understand whether a prenuptial agreement or postnuptial was made voluntarily and with full knowledge.
Final thoughts …
Both prenuptial agreements and postnuptial agreements can go a long way toward taking the guesswork out of what would happen in the event a couple divorces. Though the discussions between partners surrounding the creation of either document can cause apprehension and discomfort, it is far more advantageous to have sensitive issues out in the open and a plan in place for the future, a future that in no way must include divorce.
At Elise Buie Family Law, we understand how difficult it can be to approach your partner, the person you love, about signing either a prenup or postnup, let alone negotiating the terms of one. Our team of Seattle family law attorneys has decades of cumulative experience negotiating and drafting prenuptial agreements and postnuptial agreements and can offer you helpful tips about how to get the conversation started with your future or existing spouse. Contact us today.
