Basics of the Washington State Prenuptial Agreement Form

What is a Prenup?

According to the Washington State Supreme Court, "a prenuptial agreement (or premarital agreement) is a contract entered into prior to marriage that recognizes the right of both parties to conduct their affairs in the event of subsequent separation or dissolution of marriage." See Cantu v. Cantu, 83 Wn.2d 144, 152-153, 516 P.2d 893 (1973) . A prenuptial agreement can be used effectively to protect the future assets of one or both parties in the event of a dissolution of marriage. It also allows the parties to enter into a contract reciprocal rights and obligations while they are still married. A prenuptial agreement can also address the disposition and ownership of property, as well as the disposition of the parties’ debts in the event of the death of either party.

The Legal Requirements in Washington State

The Washington State Prenuptial Agreement Form does not automatically mean that the form is legally binding. The law in Washington state contains legal requirements which apply to prenuptial agreements. Among other things, a prenuptial agreement must be in writing and must be signed by both parties. The general rule of law is that contracts may be either oral or written and, in this case, it is a little bit of both. A prenup will usually contain both oral and implied promises as well as provisions that are then written down on paper. The prenuptial agreement form itself is relatively short and simple in nature.
Not only is the form generally relatively short, it will also be less expensive to prepare and may make the premarital discussion of finances more private. Another important requirement for the prenup is that the parties must have been represented by separate attorneys or expressly waive that right in writing. The parties should have had an opportunity to ask their attorneys questions relating to the prenuptial agreement. If the parties do not comply with these special requirements, the courts in Washington state will likely not enforce the prenuptial agreement, and it will be as if the prenuptial agreement did not exist in the first place.
The court will examine the circumstances surrounding the circumstances under which the prenuptial agreement was signed and entered into. If a court finds that what appears to be a valid prenuptial agreement was entered into with any type of fraud, undue influence or coercion, the court is likely to set aside the prenuptial agreement by declaring it invalid.

Advantages of a Prenup

It is a common misconception that premarital agreements such as the Washington State Prenuptial Agreement Form (also known as a "pre-nup") are only for the wealthy or elite. Nothing can be further from the truth.
A modern, fairly conventional, prenuptial agreement sets out the parties’ separate property rights, their rights to marital property, and how property will be disposed of on the death of either party or by divorce. It can waive spousal maintenance obligations, set values on property, and it may provide financial disclosure to satisfy Washington State’s Community Property law. It may also set forth provisions as to certain other family matters including debts assumed by each spouse, financial disclosures, insurance issues, and estate planning.
There are several reasons to enter into a premarital agreement. It protects hobbies and/or business interests, particularly if one or both spouses has been married before or has children. It may keep separate property outside the community at death or divorce. It can establish financial responsibility during marriage, as well as spousal maintenance obligations such as limitation on duration or amounts. It helps define early on what property is marital or separate. It can be particularly helpful if one spouse has drastically more debt than the other, or if one-party is significantly wealthier than the other. It takes advantage of the legal privilege associated with a contract, which provides certainty and predictability over Washington State laws concerning property rights at death or divorce. A well-drafted prenuptial agreement can give both parties peace of mind, and leave the bigger issues to resolve at even higher levels of personal asset and relationship value.

The Parts of a Prenup Form

The typical Washington State prenuptial agreement form is broken down into components. These components are essentially the clauses found in a prenuptial or premarital agreement. The first part of a Washington State prenuptial agreement form consists of the parties’ identifying information and a statement that both people are entering into the agreement voluntarily. The identity portion of the form usually simply requires basic identifying information for both parties. These typically include their names, current addresses, educational backgrounds, jobs, and dates of birth. It will also require a disclosure statement regarding each parties income, assets, liabilities and quasi-community or community property currently in their possession. The second part of the prenuptial or premarital agreement form consists of the introductory clauses explaining the purposes of the pre-marriage agreement. The next aspect of the prenuptial agreement form outlines the terms of management of both downs and assets. The terms typically provide a description of each people’s right to both assets and debts obtained during their marriage. There may even be provisions for future inheritances each person is likely to receive because of parental lineage. The agreement should specifically state their rights to the property should they opt for a legal separation , divorce, or one partner passing away. The prenuptial or premarital agreement will likely also outline the rights, duties, and obligations each party has with regards to their spouse. This portion of the Washington State prenuptial agreement form will describe what happens with property each party possessed before they were married, when they separate, divorce, or pass away. It will also outline what each partner’s income will also be used for and for what purpose. Various clauses concerning issues that might arise during a divorce should also be found in the Washington State prenuptial agreement form. These clauses include an agreement on which person is responsible for payment of debts, how alimony is calculated, how management of assets is done, and even matters involving child custody and support. It can also specify the control over various property in the event that both parties get divorced.

How to Make a Prenup

At least one attorney needs to be involved in the process. In Washington, there are a few statutory requirements that must be met for the prenuptial agreement to be valid. I suggest each party meet with an attorney separately to review the agreement and what the rights are under Washington law, as well as what the terms of the proposed agreement. It is also very important to provide your attorney with all of the financial documentation requested, so that all of your assets are represented and disclosed. The financial disclosure required in Washington includes copies of all bank statements, income statements, proof of income, copies of retirement account statements, business valuation if applicable, tax returns, loan statements, etc. The attorney will then review the agreement drafted by you and your fiancée/future spouse and suggest any changes or revisions. Once you agree on the final prenuptial agreement, it will be signed just prior to your marriage.

Common Errors to Avoid

Common mistakes can arise when drafting a Washington State prenuptial agreement. In this section, we will enumerate and briefly expand on some of those pitfalls.
If you use a form or template for your prenuptial agreement without legal guidance, or keep a prenuptial agreement in your nightstand because you presume your partner would never ever ask to see it, you might be setting yourself up for disaster. If your agreement isn’t drafted precisely and in accordance with Washington State’s rules for prenuptial agreements, it can be invalidated by a judge.
Some people view premarital agreements as a prenup-a cruel, anti-marital agreement. But the spirit of a Washington State prenuptial agreement is to balance the interests of both spouses so declarations made today, during the courtship, don’t lead to conflict later, during the marriage, if there’s a tragedy or separations. It’s not about locking your spouse into an unfavorable deal; it’s about crafting a collaborative relationship agreement with the help of experienced attorneys.
Keeping a premarital agreement in a locked drawer or on your computer may not constitute "full and fair disclosure" because it does not give your spouse the opportunity to review the entire agreement before signing. Make the secure document available even if it’s not specifically requested. Disclosing all relevant information about your assets and financial situations gives your spouse a fair chance of understanding what you bring to the marital partnership, which is a sign of good faith and essential to the validity of the agreement .
In an effort to minimize conflicts in the future, you may have intentionally built in piecemeal, inconsistent terms for what your prenuptial agreement will be suspended to enforce Washington State’s community property law or modified by a family court judge. For example, if you list the marital residence as community property so that the house can be sold later to divide the marital estate evenly, but say that the buyer doesn’t have to know what is in the agreement, a judge might invalidate the entire agreement if the house is recorded as a community property.
If there isn’t a financial benefit or your spouse feels uneasy about signing the agreement, he or she may consider contesting the document if your the marriage ends in divorce. Even though spouses are prohibited from waiving any form of spousal maintenance in a prenuptial agreement, compensation for the time and energy devoted to the initiation of the marriage (commonly known as the effort doctrine) may be enough to uphold the agreement in court. However, if you’ve negotiated heavily for asset protection, your spouse may believe it’s unfair and may seek to invalidate the prenup, in which case the judge might look at the prenuptial agreement’s fairness and result when determining its enforceability.
Washington State law requires that both spouses receive full and fair disclosure of each other’s assets, liabilities and income, that the agreement is made voluntarily without duress, fraud or misrepresentation and that all provisions, together, do not lead to gross unfairness. If these basic requirements haven’t been met, copies of your prenuptial agreement aren’t fair, nor is the agreement signed in a non-coercive environment, you run the risk of a judge invalidating the document, leaving the issue of asset and liability division up to the state’s laws.