Prenuptial Agreements in Washington

One of the most exciting events in a person's life is an engagement to be married. Yet amid all the exhilaration and planning, most people don't stop to consider the legal implications of marriage. If you're planning to marry, it's advisable to take some time to think about whether you should get a prenuptial agreement.

What Is a Prenuptial Agreement?

A prenuptial agreement is a contract that two people sign before they marry. The contract is a legally enforceable plan for how the future spouses will divide and manage their assets if they divorce, separate, or if one of the spouses dies. Judges will interpret prenuptial agreements in the same way that they interpret any other kind of contract.

Generally speaking, prenuptial agreements are concerned with the division of property, which is defined as any interest in real property (like land or buildings) or personal property (like bank accounts or household furnishings).

Prenuptial agreements have to be finalized before a marriage occurs. They are entered into "in contemplation of marriage," meaning that the parties sign the agreements with the understanding that they are going to marry the other person. They become effective as soon as the parties are legally married. In some states, prenuptial agreements are also known as premarital or antenuptial agreements.

Who Should Get a Prenuptial Agreement?

If any of the following scenarios apply, couples should consider getting a prenuptial agreement:

• One or both spouses are bringing major debt into the marriage.
• One or both spouses are bringing valuable real or personal property into the marriage.
• One spouse is much wealthier or much poorer than the other.
• One or both spouses have been married before.
• One or both spouses already have children.

This list is non-exclusive. If you have any doubts about whether you should enter into a prenuptial agreement, contact an experienced Washington family law attorney for more advice. It's important not to leave prenuptial agreement planning and negotiation to the last minute, when you feel pressured by the coming wedding.

It's best to start as far in advance as you can. Courts are more likely to approve contested prenuptial agreements that are signed well in advance of the wedding, because that way they know both spouses had plenty of time to consider their options. On the other hands, courts are more likely to be skeptical of agreements that are signed right before the big day, because it may appear that the agreement was signed in haste.

What Issues Can a Prenuptial Agreement Cover?

Prenuptial agreements in Washington are intended to protect and divide property and to memorialize agreements about alimony. For example, in the following non-exclusive list, a prenuptial agreement can include some or all of the following issues pertaining to property:

• the continued ownership and management of existing and future assets,
• the adequacy of compensation for management of separate assets,
• a requirement that one or both spouses maintain life insurance,
• the amount, type, and duration of alimony to be awarded in the event of a divorce,
• the waiver of the right to alimony, and
• the disposition (allocation) of property if one of the spouses dies or if the parties separate, divorce, or if some other event occurs.

Can a Prenuptial Agreement Determine Child Custody, Child Support, and Alimony in Washington?

The Washington state legislature has decided that spouses may use prenuptial agreements to decide issues of alimony. This means that prenuptial agreements can be used to establish the type, amount, and duration of alimony that will be awarded in the event of a divorce or separation. It also means that prenuptial agreements can be used to waive (give up) the right to alimony.

The parties are free to include their own agreement about child custody and child support in a premarital agreement. If they divorce and no one challenges the prenuptial agreement, the custody and support provisions will be self-enforced. However, Washington law does not permit custody and support to be legally determined in a prenuptial agreement. The Washington family courts retain the ultimate authority to decide custody based on the best interests of the child, and to calculate support based on the applicable financial guidelines. Therefore, if the prenuptial agreement is challenged, the presiding judge will decide these issues independently and without referring to the contents of the agreement.

How Can I Ensure my Prenuptial Agreement Is Enforceable in Washington?

To ensure that a prenuptial agreement is fully enforceable in the Washington courts, the following requirements must be met:

• The agreement must be in writing. Oral (spoken) agreements are unenforceable.
• The agreement must be signed by both parties. The parties should sign the agreement in the presence of a notary.
• The agreement should contain a separate page for each party's attorney to sign. The page should also contain a certification that the attorney explained the agreement to the client and the client understood it and signed it voluntarily.
• The agreement must be executed (signed) in contemplation of marriage. The marriage itself is consideration for the agreement, meaning that marriage is the thing of value which induces each spouse to sign the agreement. If there is no marriage, the agreement is unenforceable.
• The agreement should contain a list of the parties' assets, liabilities, and income.

If a spouse challenges the validity of a prenuptial agreement, the court must decide the case as a matter of law. The family law judge will apply a two-part test to decide whether to uphold or reject the agreement.

• The first question is whether the agreement is fair and reasonable to the spouse who is poorer or isn't in a position of power. If the agreement is fair and reasonable, the court may end the inquiry and enforce the agreement without moving on to the second part of the test.
• The second question has two parts:
  • Did each spouse provide full disclosure to the other spouse about the amount, character, and value of the property involved?
  • Did both spouses enter into the agreement fully and voluntarily, based on independent advice, and with full knowledge of their rights?

If the answer to any of these questions is "no," a Washington court is likely to strike down the agreement and say that it's an unenforceable contract.

One good way to assure that the agreement is enforceable and that disclosure is full and fair is to provide a complete, itemized list of the assets and their approximate value, debts and their approximate balance, and each party's income, in the text of the agreement itself.

It's also wise to include a choice-of-law provision in a prenuptial agreement. Choice-of-law refers to which state's law will be used to decide any disputes that arise about the contract. This can be important in the event that the marriage deteriorates and someone relocates. Deciding in advance whether Washington law, or some other state's law, should be used to interpret the contract can save you a great deal of time and money if you wind up in litigation.

Finally, courts are much more likely to enforce prenuptial agreements if both parties are separately represented by their own respective attorneys. This is because when each party is represented by counsel, the playing field is leveled and both parties can receive sound advice.

Can I Change or Terminate a Prenuptial Agreement After Marriage?

Yes. To modify an existing prenuptial agreement after marriage, the parties must mutually consent to the modification either through their conduct (meaning, their behavior and apparent acceptance or rejection of the modification) or through a written agreement. A written agreement is legally preferable.

On the other hand, to rescind (terminate) a prenuptial agreement, the parties will need a brand new contract which contains an offer to rescind that is communicated by one spouse, and acceptance of that offer by the other spouse. Again, it is legally preferable that this be memorialized in a written agreement.

If you have questions or are considering a prenup, you should contact a local family law attorney for advice.