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  • Rachel J. Leos

Estate Planning Series: Marital Agreements

One of the most exciting times in a person’s life is when they get engaged and plan their wedding… the venue, the food, the dress, the rings…yet, most people don’t stop to consider the legal implications of marriage. After all, marriage is a legal contract. As much as a marriage is a public declaration of love and commitment, it is also a financial partnership and therefore, people should stop and think about whether a prenuptial agreement is right for them. Sure, there is a fair amount of social stigma attached to prenuptial agreements: Aren’t you expecting your marriage to last forever? Why are you preparing for your divorce? However, statistically, more than half of American marriages end in divorce, despite everyone’s best intentions. While many people think prenuptial agreements are only useful for the rich and famous, prenuptial agreements also help regular people maintain their property and possessions in case of a divorce.

What Is a Prenuptial Agreement?

A prenuptial agreement is a legally enforceable contract that two people sign before they marry. The agreement clarifies which assets are brought to the partnership by each party and the party’s plan for how they will divide and manage their assets if they divorce, separate, or if one of the spouses dies.

When Can I Get a Prenuptial Agreement?

It’s important not to leave prenuptial agreement planning and negotiation to the last minute. It’s best to start as far in advance as you can. Courts are more likely to uphold prenuptial agreements that are signed well in advance of the date of marriage.

Who Should Get a Prenuptial Agreement?

Couples should consider getting a prenuptial agreement when:

  1. One or both spouses are bringing major debt into the marriage.

  2. One or both spouses are bringing valuable real or personal property into the marriage.

  3. One spouse is much wealthier than the other.

  4. One or both spouses have been married before.

  5. One or both spouses already have children.

This list is non-exclusive.

What Can a Prenuptial Agreement Cover?

A prenuptial agreement can include some or all of the following issues pertaining to property, although this list is not exclusive:

  1. The continued ownership and management of existing and future assets,

  2. The adequacy of compensation for management of separate assets,

  3. A requirement that one or both spouses maintain life insurance,

  4. The amount, type, and duration of alimony to be awarded in the event of a divorce,

  5. The waiver of the right to alimony, and

  6. The disposition (allocation) of property if one of the spouses dies or if the parties separate, divorce, or if some other event occurs.

What can a Prenuptial Agreement NOT Cover?

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. Notwithstanding the above, a prenuptial agreement can be used to establish the type, amount, and duration of alimony that will be awarded in the event of a divorce or separation or to waive (give up) the right to alimony all together. You can also include an agreement on child custody and child support, however, if the prenuptial agreement is challenged, the presiding judge will decide these issues independently and without referring to the contents of the agreement.

Can I Change or Terminate a Prenuptial Agreement After Marriage?

Yes. To modify an existing prenuptial agreement after marriage, the parties must agree to the modification either through their conduct clearly adverse to the terms of the agreement or through a written agreement, which is generally the most preferred method.

Why Should I Hire an Attorney?

Prenuptial agreements are very complicated and are often not enforced by a court if they are not carefully written. They are highly detailed and specific to each couple’s assets and points of interest. They are specifically formatted and are not easy nor simple to draft. Fill in the blank forms often are not mold-able to each couple’s situation- whether they know it or not. An attorney can help make sure a prenuptial agreement will is valid and enforceable and correct for your situation.

What if I am already married?

Postnuptial agreements are a written contract used to clarify ownership of assets or debts acquired during the marriage and to settle the couple’s affairs and assets in the event of a separation or divorce. Postnuptial agreements can be done at any time following marriage.

What if I am not going to get married, but live with my partner?

Cohabitation agreements are contracts between unmarried couples who live together, detailing legal rights and responsibilities between the partners. In most Cohabitation Agreements, property ownership is clarified and it is determined how assets and debts will be divided in the event of a separation.

Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and should not be construed as legal advice from Leos & Gilkerson, PLLC or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a licensed lawyer.

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