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Prenuptial & Postnuptial Agreements

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At Groves Law Offices, our Tacoma family lawyers have over three decades of combined experience in helping clients with marriage agreements. We can effectively guide you through the legal process while making sure your rights and best interests are fully protected. Call us today for a free consultation at (253) 210-2008.

I Am Considering Marriage, Should I Have a Prenuptial Agreement?

The answer is: It depends! Only you and your fiancé(e) can make the determination of whether a prenuptial agreement is the right thing to do. Generally, a prenuptial agreement is drafted to protect the assets of the parties who have accumulated a large financial portfolio. But these agreements can be used to satisfy any number of differing financial needs and estate planning purposes. The default community property distribution of assets in Washington State can have serious consequences for an individual’s portfolio and other business assets. Under the normal community property distribution, all future earnings are considered community property and subject to distribution by the courts. In addition, each party can ask for the court to award spousal maintenance based on the length of the marriage, their needs, and other factors. The state’s default inheritance laws would also act to distribute each person’s property upon their death. Even with a prenuptial agreement, a will or revocable living trust should be created to modify the default application of the state’s intestacy statutes, if desired. Prenuptial agreements can be useful to avoid potential conflict and can be conducive to creating a collaborative approach to dealing with financial considerations that the default laws may otherwise “impose” on the parties.

What Can a Prenuptial Agreement Accomplish?

Regardless of the parties’ specific financial position, all prenuptial agreements operate to change how Washington’s default property distribution laws would apply to their estates upon marriage. A properly drafted prenuptial agreement will allow the parties to create their own property distribution agreement that better fits their specific economic circumstances. This agreement becomes a legally binding contract between the parties to conduct the acquisition, transfer, and characterization of current and future assets or liabilities.

Do I Need an Attorney to Draft Our Prenuptial Agreement?

Yes and no. No, because the drafting, negotiation, and execution of a prenuptial agreement do not require the services of an attorney, but it is highly recommended due to the complexity of the issues involved. Yes, because under Washington State case law, the assistance of an attorney for each party is highly regarded and we dare say necessary for enforcement. Upon review of a prenuptial agreement, the court may determine each party’s access to the advice and consultation of independent counsel in the negotiation and drafting process. The failure to seek the assistance of independent counsel for either party may cause the prenuptial agreement to be disregarded by the court as fundamentally unfair.

A poorly prepared or executed prenuptial agreement can result in the agreement being unenforceable. Prenuptial agreements evoke many different feelings in people and have been misunderstood because of some of the abuses that have taken place in the past. This makes prenuptial agreements some of the most highly scrutinized legal documents that exist. While there can be no guarantees when it comes to prenuptial agreements, you owe it to yourself and your future financial security to get the best advice possible on creating an enforceable contract.

If a prenuptial agreement is challenged before the court, the judge will determine if the parties had an opportunity to review and understand the agreement. Having independent attorneys for each party is critical to satisfying a future fact-finder that each party knowingly, intelligently, and voluntarily agreed to be bound by the terms of the agreement.

What Mistakes Should I Try to Avoid?

As previously mentioned, the advice of counsel should be sought to advise each party on every aspect of the agreement they are entering into. The attorneys should be independent and not chosen by the other party. Each party should be responsible for their own attorney fees if possible. The attorneys need to be free from any suspected bias that may be present when they are chosen, or their services paid for by only one party. The timing of these agreements is crucial as well. Judges often frown on agreements that are reached close to the date of the wedding. The judges are more likely to uphold an agreement if there has been an adequate amount of time to consider the prenuptial agreement in a deliberate manner. Our recommendation is that the prenuptial agreement is finalized at least two months prior to the intended wedding. Would a prenuptial agreement that's finalized closer to the wedding date be automatically void? No, absolutely not; but any action that can be done to improve the chances of your agreement being upheld, if challenged, should be taken. Care should also be taken to not go “too far” in the agreement. There is nothing wrong with creating a fair contract and it should be the goal of all parties. Regardless of the contract's enforceability, the court can deny the application of a contract that is “unconscionable”. Such an analysis is a “substantive” evaluation of whether the agreement makes a fair and reasonable provision for the other party. Even if the agreement awards more property to the wealthier party, the agreement will be upheld without further consideration as long as it is not unfair to the other spouse. If the court determines the agreement is unfair, a procedural fairness determination will be made by the court. The court will determine if the contract provided the necessary amount of time for consideration, full disclosure of the nature and value of their property, and if the parties entered into the agreement knowingly, voluntarily, and intelligently. The burden of proof in contested matters will be on the party seeking to enforce the agreement. Even if the agreement was not substantively fair, the court may refuse to void the contract if there was procedural fairness. Most importantly….follow your agreement! Nothing can serve to invalidate an agreement faster than ignoring its provisions. If circumstances change, consider a new postnuptial agreement to memorialize the changes prior to taking actions that may invalidate your prenuptial agreement.

Can’t I Just Purchase One of those Prenuptial Packages off the Internet?

Yes, you can, and millions of other people can as well. Prenuptial agreements are not “one size fits all” kind of agreements. These are quite possibly the most important documents you will be creating in the course of your marriage. When the stakes are as high as they are, you owe it to yourself to make certain you have all of the necessary facts before committing to a contract that will guide your conduct and financial security in the foreseeable future. The legal fees that are incurred to properly prepare and execute a prenuptial contract can reap huge rewards in regards to the certainty of the agreement and the confidence that your financial plans can proceed as envisioned.

Disclaimer:

This is a legal discussion, not legal advice.

Please call our experienced annulment attorneys in Tacoma at (253) 210-2008 for a free consultation.

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