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Is a Prenuptial Agreement Necessary?

2011 March 10
by Asset Protection Solutions

Prenuptial Agreement…Those are two words that hopeless romantics, women like Anna Nichole Smith, and men like Kevin Federline hope to never hear. While this document may be as un-romantic as your mother-in-law accompanying you and your spouse on your honeymoon, it may be more beneficial to your marriage than you may think. Any psychologist or divorcee will tell you that communication is paramount in a successful marriage and a prenup can function as the AT&T of financial issues. By clearly defining financial issues between the parties, it may reduce conflicts during the marriage.

In addition to providing clarification of any questions regarding financial issues during the marriage, it may act as a crystal ball of sorts and dispel any uncertainty as to the consequences of dissolving that marriage. Finally, if properly executed it may reduce the litigation costs of a divorce.

So how does one properly execute a valid prenup in Washington State? Well, the Supreme Court, in a case called In re the Marriage of Bernard recently set forth strict requirements that must be followed.  First, the agreement must be “substantively fair.” This means the agreement makes fair and reasonable provision for the spouse. Basically, the agreement must be fair in relation to the parties’ respective financial situations.

Second, the agreement must be “procedurally fair.” To meet this requirement, you must: (1) fully disclosure the amount, character, and value of your property and (2) the agreement must be entered into fully and voluntarily with full knowledge by both spouses of their rights. In order to comply with this last part, adequate time must be given to your spouse to seek independent advice from an attorney. While they don’t necessarily have to speak to an attorney, it’s always a good idea to have them do so. As far as the time your spouse must be given, the courts are pretty clear that hours or days before the wedding ceremony is simply not enough time.

To avoid any potential legal pitfalls, you should ALWAYS seek the advice of an attorney before you attempt to draft or execute a prenup. Downloading a boiler-plate prenup from Legal Zoom and having your fiancé sign it could result in its invalidation and could cost you more in legal fees than simply hiring an attorney to do it right the first time.

While many believe marriage is a sacred institution, it’s important to remember that legally speaking, marriage is an institution formalized by a legal contract, and a prenuptial agreement is simply an addendum to that contract. The odds that your fiancé will view marriage this way are about the same as Charlie Sheen becoming a spokesman for the Betty Ford Clinic. However, setting aside some of the emotional aspects and looking at a prenup from an objective standpoint may help to open the lines of communication. Good luck!

Joe Schodowski is a contributing author to this blog and has been admitted to practice law in the state of Washington.  He limits his practice to the areas of family law and criminal and civil traffic matters.  The Law Offices of Joseph Schodowski, PLLC works in association with the Law Offices of Richard D. Seward, PC.

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