So you’re planning to sign a prenuptial agreement before you get married. There are plenty of good reasons to do so: an agreement can protect both spouses not only if you divorce, but also in the event that one of you passes away. However, it’s very easy to make mistakes that could have unintended consequences later on.
While divorce rates have been dropping for several decades, about 40% of marriages today are still expected to end in divorce, and early deaths can happen. A prenup can have a very strong impact or none at all, depending on its enforceability. Either way, the result might not be what either spouse intended.
These are some of the most common mistakes we see in prenuptial agreements.
1. DIY agreements that don’t match state law.
Some couples use DIY prenuptial agreement templates to save money, but these templates often don’t match up well with state law. Many of these templates include unenforceable language, omit required components, or use unclear terms.
Courts have been known to reject DIY prenups for not meeting legal standards. If you want to avoid this outcome, you need to work with an experienced attorney.
2. Accidental violations of public policy.
Washington state courts will not enforce provisions that violate public policy even if both parties agree to them. Clauses that attempt to waive child support, dictate child custody, or punish infidelity often fall into this category.
No matter what you agree to in a prenup, child-related matters are always decided based on the child’s best interests at the time of separation. It’s best to keep your prenup focused on financial issues like property division and spousal support.
3. Making an agreement under circumstances that could be seen as coercion or pressure.
Prenuptial agreements are not enforceable if either spouse was coerced, pressured, or manipulated into signing the agreement. If there is any reason for a judge to think one spouse was pressured or didn’t understand what they were agreeing to, your prenup will be hard to enforce. There are more likely to be legal challenges if only one party had a lawyer or if both parties failed to seek legal advice.
4. Making an agreement too soon before the wedding.
A prenup signed shortly before a wedding will raise red flags with a judge. It will make it look like one spouse was pressured or rushed, even if there’s no other evidence that this was the case. If you want your agreement to be enforceable, you should begin the process of creating it at least a few months in advance.
5. Incomplete financial disclosure.
Failing to disclose all your financial details, even by accident, could make your prenup unenforceable. A prenuptial agreement is only valid if both parties enter into it with full awareness. That means you must each be aware of each other’s full assets, income, debts, and liabilities.
Washington courts will take it seriously if either party fails to list a bank account, business interest, investment account, or significant debt. The court could rule that you didn’t enter into the agreement with full awareness and throw it out.
6. Failing to give both parties independent representation.
Since you and your spouse love each other and are planning your lives together, you might be tempted to use the same lawyer. However, failing to get independent representation for each of you now could make the prenup less enforceable later on. Independent representation is important for showing that both spouses understand the agreement and are therefore entering into it voluntarily.
7. Making an agreement that could be seen as too unfair to be enforceable.
Courts will often reject alimony limitations for being unconscionable at the time of enforcement, even if they might have seemed fair at the time of drafting. For instance, a judge may view your prenup as unconscionable in a situation where one spouse gives up the right to spousal support while the other holds most of the assets, or where one spouse gave up a career to raise children and then ended up in a situation without income or retirement savings. Even if both spouses freely agreed at the time, it might not be enforceable later.
Washington state does allow agreements to waive or limit spousal support in some cases. The most important factors are whether the overall agreement seems reasonable and whether both parties had full knowledge and choice. An experienced family lawyer can help you figure out the best way to create an agreement that is likely to be fair and enforceable even if your situation changes.
8. Assuming your agreement will be enforced in other states or countries.
Every state and country has its own laws around divorce, death, and premarital agreements. Even if your prenuptial agreement is valid in the state where you lived when you agreed to it, another state might not even recognize that state’s law.
Estate planners aren’t always aware of these enforceability limitations. If you think you might move after getting married, make sure to talk to a lawyer who has experience with prenuptial agreements.
9. Failing to incorporate provisions into wills or trusts.
Your prenuptial agreement likely has provisions that apply at the death of a party. If it does, those provisions should also be reflected in the person’s will or revocable trust. They also need to be written with liquidity and taxes in mind.
Taxes upon death will affect the financial impact of the prenuptial agreement, and agreements based on a lump sum or percentage of the estate could be hard to enforce if the assets aren’t liquid. The agreement should also clarify whether payments upon death are before or after taxes.
10. Failing to consider potential changes of fortune.
Unanticipated future events can make prenups that seemed fair at the time appear ill-fitting or unfair later on. While you might be in a steady career and feel that your future is predictable, situations can change for all kinds of reasons. Financial shifts, career changes, children, and health problems can all affect whether a judge will view the agreement as fair and enforceable in the future.
In Washington state, courts often consider whether prenuptial agreements are fair at the time of enforcement, not just whether they were fair when they were signed. Major life changes can lead to altering or disregarding the terms of your prenup.
Get Help Creating a Fair, Legally Enforceable Prenuptial Agreement
At Anderson Hunter Law, we have deep experience with all aspects of family law and estate planning in Washington state. We can offer you fair representation while you draft your prenuptial agreement and help you and your future spouse create a legally sound document.
Request a consultation with one of our experienced family lawyers today.