I am Considering Marriage. Should I Have a Prenuptial Agreement?
The answer is: It depends! Only you and your fiancé 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 one of the parties who have accumulated a larger financial portfolio than the other party. 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 individuals’ portfolio and other business assets. Under the normal community property distribution; all future earnings are shared equally by the parties. 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. (See Spousal Maintenance). 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 avoid the default application of the state’s intestacy statutes. 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, regardless of the outcome.
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 of the parties to conduct the acquisition, transfer and characterization of current and future assets.
Do I Need an Attorney to Draft Our Prenuptial Agreement?
No, the services of an attorney are not required, but it would be wise to seek the assistance of an experienced attorney considering the legal complexities involved in creating a valid contract. 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. Additionally, if a Prenuptial Agreement is challenged before the court, the judge will determine if the parties had an opportunity to review and understood the agreement. Having separate attorney’s for each party is critical to satisfy a future judge that each party knowingly, intelligently and voluntarily agreed to be bound by the terms of the agreement.
What Mistakes Should I Try and 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 attorney’s should be independent and not chosen or paid for by the other party. 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 far 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 be finalized at least 2-months prior to the intended wedding. Would a Prenuptial Agreement 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. Regardless of the contracts enforceability, the court can deny the application of a contract that is “Unconsciable.” 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.
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.
Contact our experienced Family Law Attorney’s today for a free legal consultation on all of your Prenuptial Agreement questions.