Evaluating whether I can assist you and your fiance with your prenuptial agreement or if you would be better served by each being independently represented is important to do as soon as possible. Please review the five conditions below. If any of them apply, then it would be best if you looked for another referral to assist you.
THIS AGREEMENT REGARDING CREATING SEPARATE PROPERTY DURING MARRIAGE IS ONLY ENFORCEABLE TO THE EXTENT THAT IT IS FAIR AND EQUITABLE. A COURT CAN VOID THE AGREEMENT IN WHOLE OR IN PART EVEN IF THE AGREEMENT IS FOLLOWED SCRUPULOUSLY BY THE PARTIES.
- IF THERE IS A LARGE INCOME AND/OR WEALTH DIFFERENCE BETWEEN THE PARTIES, THEN EACH SHOULD GET THEIR OWN COUNSEL. I CANNOT REPRESENT EITHER PARTY.
- IF THE PARTIES INTEND TO ADD TO THEIR SEPARATE PROPERTY DURING MARRIAGE, THEN EACH SHOULD GET THEIR OWN COUNSEL. I CANNOT REPRESENT EITHER PARTY.
- IF THE PARTIES INTEND TO ALTER OR WAIVE SPOUSAL SUPPORT, THEN EACH SHOULD GET THEIR OWN COUNSEL. I CANNOT REPRESENT EITHER PARTY.
- IF THE PARTIES SIGN WITH NINETY (90) DAYS OF MARRIAGE THEN THE AGREEMENT MAY BE DEFECTIVE AND NOT KNOWING OR VOLUNTARY. IF THE PARTIES ARE NOT WILLING TO REMEDY THIS BY SIGNING A POSTPUPTIAL AGREEMENT A YEAR AFTER MARRIAGE, THEN EACH SHOULD GET THEIR OWN COUNSEL. I CANNOT REPRESENT EITHER PARTY.
- IF THE PARTIES ARE NOT WILLING TO FULLY DOCUMENT THEIR ASSETS AND DEBTS BEFORE MARRIAGE IN A SEPARATE PROPERTY TRUST TO CLEARLY IDENTIFY IT AND FULLY UNDERSTAND THE DISTINCTION BETWEEN SEPARATE AND COMMUNITY PROPERTY, THEN EACH SHOULD GET THEIR OWN COUNSEL. I CANNOT REPRESENT EITHER PARTY.
DOCUMENTS NEED TO BE EXECUTED AND/OR RECORDED AFTER MARRIAGE TO GIVE FULL EFFECT TO THIS AGREEMENT. THESE INCLUDE QUITCLAIM DEEDS TO SEPARATE PROPERTY TRUSTS AND WAIVERS OF RETIREMENT OR LIFE INSURANCE BENEFICIARY STATUS FOR A SURVIVING SPOUSE.
WashingtonLawHelp.org has detailed self-help information as well.
A prenuptial agreement is actually a second step in the process of memorializing an agreement. The first step is to clearly identify and label what was owned and owed by each party prior to marriage. In the early years of a marriage this step is far more important than the prenuptial agreement about how the parties intend to conduct themselves during marriage.
The documentation of the actual financial conduct is much more important than the agreement regarding what the parties plan to do. Most parties do not follow their prenuptial agreements, and even if they do, the agreements may be unenforceable if unfair.
That is why I stress documenting the presumption of separate property owned before marriage continuing to be separate during marriage, if not comingled with community property. This presumption includes gifts and inheritance received during marriage.
Property acquired during marriage is presumed to be community property no matter how it is titled. Therefore, the parties can hold title individually or jointly as a convenience, but parties should not be under the impression that they have the final say on community property distribution in divorce. The Court has the final say, and can void a prenuptial agreement in whole or in part. FAIRNESS IS THE TOUCHSTONE FOR EVALUATING ENFORCEMENT OF ANY AGREEMENT BETWEEN SPOUSES.
If there is no comingling and no dispute, then the Court would not have jurisdiction over division of separate property owned before marriage in a divorce. That is why the first step of documenting and keeping separate what each party had before marriage is so important.
One reason this distinction is important is that most people wait far too long before preparing and signing a prenuptial agreement. Prenuptial agreement signed within 6 months of marriage are presumed not to be the voluntary free will of the parties. The closer to the marriage date the prenup is signed, the stronger the presumption of invalidity.
Here is a sample of a prenuptial agreement integrated into an estate plan using the templates above. By titling property owned before marriage in your name as Successor Trustee of your Trust it protects the property from your spouse’s separate creditors and makes identification of the property easier.
A postnuptial agreement can be used to cure the presumption of invalidity created by signing a prenuptial agreement within 6 months of a wedding. Waiting a year after marriage and then signing an agreement cures the issue of the prenuptial not being entirely voluntary.
The purpose of prenuptial and postnuptial agreements is to strengthen marriage. Hedging against divorce is only a byproduct.
Legal Services Offered
While my practice is centered on helping consumers get out of debt and protect themselves and their families in the event of death or incapacity, I am happy to offer additional legal services to my existing estate planning and bankruptcy clients.
I offer my clients legal counsel regarding foreclosure, buying and selling real estate, Transfer on Death Deeds, prenuptial and post-nuptial agreements, name changes, and real estate matters generally. MULVANEY LAW OFFICES, PLLC does not do litigation.
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