Making agreements about how property should be divided after marriage can help you avoid expensive and confrontational divorce litigation. You can enter your commitment fully informed up front of what each other’s financial expectations will be going into the marriage or relationship.
What Is A Prenuptial Agreement?
On a basic level, prenuptial agreements are contracts two people enter into prior to marriage. They decide, ahead of time, how their property will be divided in the case of divorce, legal separation, or annulment.
Many couples use a “what’s mine stays mine,” what’s yours stays yours” approach, ensuring they maintain their assets should the union fail. In short, it’s a way to safeguard your belongings and resources when you marry.
While the concept is relatively simple, it often gets much, much more complicated in practice. The content of prenuptial agreements can vary wildly.
In addition to the division of property, some people may even attempt to include provisions for spousal support, custody of minor children, or stipulations regarding things like infidelity. Most of these, however, are not enforceable and will likely be thrown out by the court.
Though this type of contract can be simple, they also differ a great deal and may be tailored to fit your specific needs and requirements.
Related Reading: How Is Debt Divided During A Divorce?
Are They Always Enforced?
As the two parties may enter into the arrangement with different levels of bargaining power, the court may decide whether or not it is valid and enforceable. In these cases, the burden of proof falls upon the spouse seeking to apply the terms.
First, the court may look at the document to determine if it is substantively fair, and ensure it makes reasonable provisions for the party not trying to impose the agreement. So long as it is not wholly lopsided and skewed to benefit the wealthier individual, it may very well hold up under scrutiny.
Even if it isn’t substantively fair, prenuptial agreements may be upheld as procedurally fair. In these situations, the court may examine the terms, consider the value of each party’s property, and determine whether both of you entered into the arrangement on even footing and with full knowledge.
A judge may look to see whether or not the spouse at the disadvantage had enough time to thoroughly contemplate the conditions, negotiate stipulations, or seek legal advice if necessary.
Provisions for spousal support in prenuptial agreements can be enforced. Though if the document isn’t drafted properly, or the terms are dramatically biased, a judge does have the ability to throw them out.
On the other hand, provisions for child support and custody terms are NOT enforceable in Washington.
Couples may seek to head off potential guardianship disputes ahead of time, but ultimately the court is the final authority in these matters and will act in the best interest of the child.
If a prenuptial agreement is reasonable, it’s possible that the final judgment may resemble what was laid down, but that is up to the court.
What if There Is No Prenuptial Agreement?
In the absence of a specific contract, the courts will use Washington law to address all issues involved in a divorce. However, in many cases, a couple can greatly benefit from pre-nuptial, post-nuptial, or co-habitation agreements.
Do You Need One?
There are a number of reasons you may want to consider a prenuptial agreement:
- If one party is much wealthier than the other, it can protect preexisting assets.
- If one spouse earns substantially more, this can limit future support payments.
- Does one of you have a significant amount of debt? This can protect you from having to cover your ex’s liability.
- Do you own a business and want to make sure it remains yours? You probably don’t want your former spouse as an unexpected partner.
Goldberg Jones has assisted many clients in reviewing, negotiating, drafting, enforcing, and challenging pre and postnuptial co-habitation agreements.
At Goldberg Jones, we recognize that the most important consideration in hiring your attorney and drafting your agreement is ensuring the contract is written well enough to be enforced by the courts if/when the time comes. We are aware of the factors a court considers regarding enforcement and keep abreast of new developments in this area of law.
Related Reading: How Much Does Divorce In Washington Cost?
Related Reading: An In-Depth Look At How Spousal Support Works In Washington State
From the Radio
Caller Question: “My brother is about to marry a, pretty much a gold digger, I’m urging him to get a prenup. I see a lot of celebrity prenups get tossed, is that true? Are they breakable or will this actually protect him?”
Rick Answer: “With prenups, are they breakable, and is what you’ve heard correct? Yes, but it’s usually based on a lot of time passing, where someone goes to look at that 10 years later and says, wow the law has changed. Or it seems manifestly unfair now that 10 years have passed.
“Prenups still have a very significant value, even if it’s sort of like taking a snap shot in time. So what’s very important, and it sounds like your brother is well off already, that prenup is going to say here’s how we came into the marriage.
“Here’s what I had as my separate property. Here’s what she has, or doesn’t have in terms of separate property. So it lays out the specifics there.
“If what he’s trying to do is get rid of any spousal maintenance obligation that he may have had 10 years ago, the court may balk at enforcing something like that.
“But if it’s about making sure you know who came into this with what, so it doesn’t become community property, that’s the biggest value he’s got. And I’ll throw in one more side value.
“When two people sign a prenuptial contract, it creates a deterrent for both of them to try and contest it later, because they know they have a bit of a battle if they’re trying to attack the validity of something they signed in the form of a contract.”
Have Questions About Divorce?