December 21, 2012

Prenuptial Agreements

A prenuptial agreement is a private contract executed by a couple before marriage. It is generally used to define the parties' rights and benefits regarding the division of their property if the marriage ends as a result of death, separation, or divorce. Without a prenuptial agreement, Washington's default rules govern the division of property for married couples and registered domestic partnerships.

The Default Rules: Washington is a community property state. Generally, this means that all property acquired during a marriage or domestic partnership is community property. Income, retirement savings, and real estate, for example, are all presumed to be the property of both spouses if earned or acquired during the marriage or partnership. Property acquired before the marriage or partnership or property acquired by gift or inheritance, on the other hand, is generally separate property. If community property is used to improve or benefit a party's separate property, the community may acquire an equitable interest in the separate property. After a marriage or partnership is dissolved, all the couple's community and separate property is before the court to make a "just and equitable" division in light of the parties' circumstances.
Your Rules: Many couples have reasons to avoid the default rules and use prenuptial agreements to create their own rules. Older couples may want to protect the wealth they acquired before the relationship. Couples with children from prior marriages may want to ensure those children are protected. One of the parties may have significant wealth, significant debt, or own a business. 
Creating a Valid Prenuptial Agreement: When it comes to enforcing prenuptial agreements, Washington courts will review them to see if the terms are financially fair to both parties. If the terms are financially one-sided, the court will assess the agreement's "procedural fairness" by considering whether both parties adequately disclosed the nature and extent of their debts and liabilities, whether the agreement was entered into freely and voluntarily, whether both parties had the opportunity to obtain independent legal advice, and whether the agreement was executed sufficiently in advance of the wedding so as not to create undue pressure on one of the parties to sign it. 
If you are considering a prenuptial agreement or would like an attorney to review a prenuptial agreement you have been presented with, contact a Kirkland family law attorney

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