So you’re getting married. Congratulations on your engagement! Before you say “I do,” though, there are some less exciting matters to think about, such as whether or not to get a prenuptial agreement.
Prenuptial agreements used to have a bit of stigma, but opinions have changed. These days, more than four in 10 U.S. adults support the use of prenups. Signing or asking to negotiate one doesn’t mean you’re expecting to get divorced. These documents can protect both spouse’s rights and safeguard your children’s inheritance if one of you passes away.
Why make a prenuptial agreement?
A prenuptial agreement states each spouse’s right to property if the marriage ends, whether through divorce or death. It’s not just for protecting someone’s wealth in the event of a future divorce. It can also act like a will in some situations or protect one spouse from having to take on the other’s debt.
Negotiating a prenuptial agreement also forces you and your future spouse to talk about financial issues before you get married, like how you’ll divide up bills and pay for future children’s expenses. As a result, you’ll develop a common understanding of how you’ll handle money issues, which will help you avoid some conflict later on.
What you can cover in a prenup in Washington state
Washington state does not have a particular statute with prenup guidelines, which means the rules are a little unclear. However, the state courts have developed a large body of case law that effectively requires prenups to meet certain requirements.
Both parties must fully disclose their assets before signing the agreement, enter into the agreement voluntarily without undue pressure, and consult with independent counsel to make sure they fully understand the agreement before signing it. A prenup is more likely to be enforced in Washington if there are documented negotiations to show that the agreement was bargained for and the prenup was executed well in advance of the marriage. Even with all of these provisions, a judge may choose not to enforce a prenup if they view it as unfair to one spouse.
A prenuptial agreement can cover many different topics, including these:
- How property will be divided if the marriage ends, including inheritances, real estate, physical and intellectual properties, retirement funds, insurance policies, and business assets. For instance, you may want to specify that certain property will pass onto children from a previous marriage instead of your spouse.
- How you will handle future financial matters, such as children’s education expenses.
- Whether a person’s debt will continue with them alone after a divorce — this type of clause sometimes shows up when one spouse is debt averse and the other has a history of spending problems.
- A specific payment amount and timeline for spousal support if the marriage dissolves.
- Terms that require keeping the details of a marriage or divorce private.
However, you can’t put anything into prenup and expect it to be enforced. For instance, while infidelity clauses that fine spouses who cheat are common in some states, they generally can’t be enforced in no-fault divorce states like Washington. Generally speaking, clauses that involve child support, custody, or visitation rights are also not enforceable.
Keep in mind that you might not be able to enforce parts of your prenup if you move to a different state. All 50 states honor prenuptial agreements, but some have their own specific requirements for them to be valid or place other legal standards above prenuptial agreements.
How to draft an effective prenup
To create an enforceable prenuptial agreement, both you and your spouse should have your own lawyer. Washington state courts are unlikely to enforce prenups if one spouse or the other was unable to get legal representation. Your lawyers can help create the agreement and make sure the agreement is worded correctly so that it’s likely to be enforceable where you live.
Ideally, you and your future spouse should start the prenup drafting process and find your lawyers well before your wedding date. Wedding planning tends to be very demanding, and even if you’re not planning a large celebration, a last-minute agreement might make it seem like one spouse was under pressure to sign. A judge is more likely to enforce an agreement that was signed well before the wedding.
Be very careful to fully disclose all your assets before you sign the agreement. If one spouse leaves assets out, whether intentionally or not, that can make the prenup unenforceable.
Like with other legal agreements, a prenup agreement should be written down, signed by both parties, and witnessed by a notary public.
Need a Prenup Lawyer in Western Washington?
The Anderson Hunter Law Firm handles family law matters in Snohomish County and the surrounding area. Our family lawyers can help you draft a fair prenuptial agreement that is likely to be enforceable in this state.
Schedule a consultation with one of our experienced lawyers today for help drafting your prenuptial agreement.