Prenuptial Agreements: What Is A Prenuptial Agreement? A prenuptial agreement is just an agreement that two parties enter into, like any other contract. It lays out what assets remain separate; what maintenance gets paid if the parties divorce, and how the assets get divided if the parties divorce. A sample of a prenuptial agreement is here. Prenuptial agreements have been used for many years. The oldest one I know of was used in ancient Egypt – 3500 years ago!
What Can’t It Do? A prenuptial agreement cannot control a parenting plan or child support. It can’t remotely control what the parties do duringthe marriage. For example, I have seen prenups which say things like, “Husband will wash dishes three times per week and take wife out to dinner at least one time per week”. Those are nice things to have in the agreement, but they are totally unenforceable.
Similarly, agreements that say things like “Parents agree to split the children 50/50” may be useful to remind the parties what they agreed to; but in divorce the court will ignore it. (I find it still helps to get parties to agree on a parenting plan, though. It reminds the parties of what they had – even if informally – agreed to.
How Do I Make It Enforceable? Have an attorney (like me) draw it up. There are a number of keys to making sure a court will enforce it later on:
- Do it well in advance of the wedding. Prenups signed the night before the wedding make courts suspicious.
- Have an attorney review it for the other side. That way a court will say – even though it may be unfair – the party knew what they were doing.
- Make It Fair. Prenups which are completely one sided are hard to enforce. Not impossible; but if the court thinks it is totally unfair then it will look for reasons why it should set it aside.
- Live With It. If it requires that you keep accounts separate, keep them separate.
BUT – call me with questions. There is no substitute for talking to an experienced attorney!
Case Law And Citations:
Separate property agreements (prenuptial agreements) are held to a higher standard than community property agreements because the law favors the creation of community property.
Harry M. Cross, The Community Property Law in Washington (Revised 1985), 61 WALR 13, 101 (1986)
Ryan v. Diafos, 110 Wn. App. 758, 371 P.3d 304 (2001), review denied, 147 Wn.2d 1024 (2002).
The enforceability of separate property agreements or prenuptial agreements is determined by a two-pronged test, now known as the Foran test. If the agreement is fair on its face, the agreement is valid. If not, the agreement may still be valid if (1) full disclosure has been made of the amount, character, and value of the property involved and (2) the agreement was entered into fully and voluntarily on independent advice and with full knowledge by both spouses of their rights.
In re Marriage of Burke, 96 Wn. App. 474, 980 P.2d 265 (1999);
In re Estate of Hansen, 77 Wn. App. 526, 531, 892 P.2d 764 (1995);
In re Marriage of Foran, 67 Wn. App. 242, 249, 834 P.2d 1081 (1992)
Under the Foran test, a party does not have assistance of independent counsel if the attorney failed in “assisting the subservient party to negotiate an economically fair contract.” Failures can include not representing the party in the negotiations, but only advising the party.
In re Marriage of Bernard, 137 Wn. App. 827, 835-36, 155 P.3d 171 (2007)
Under the Foran test, a party does not have full knowledge of his or her legal rights where the party’s attorney failed to provide accurate legal advice.
In re Marriage of Bernard, 137 Wn. App. 827, 836, 155 P.3d 171 (2007)