If you are married, are thinking about getting married, or have been married and are divorced, a prenuptial agreement (“prenup”) may be something that has crossed your mind.
Some people believe they don't need a prenuptial agreement because “I don't have anything.” Often people tell me that prenups are something that “rich people“ to get, or that it somehow means you are planning on your marriage failing.
As someone who handles complex divorce cases and a myriad of other family law issues, I can tell you firsthand that a prenuptial agreement, post nuptial agreement, or cohabitation agreement for an unmarried couple, are amongst the best gift spouses or partners can ever give to each other.
No one wants to talk about it, but the reality is that many studies and statistics show that more than half of marriages end in divorce. If you were on a second marriage, your likelihood of ending up in a divorce goes up to over 60%, and if you are on the third or fourth marriage, even higher. We can talk about the reasons for why this might be, but that is another discussion for another day. What is certain is that people spend an exceptional amount of money on the divorce process. Both parties typically should have attorneys to help them navigate what is the undoing of the most intricate financial contract of their lives, advocate for residential time with any children involved, and otherwise advise on the process. If you break your leg, you need a good doctor. If you are getting divorced, you need a good attorney.
Litigation, if you end up needing to go that route, is expensive, even mediation can be costly. Having a valid prenuptial, post nuptial, or cohabitation agreement in place is a promise of love and commitment but spouses can make to each other that they will not spend big money that would otherwise be theirs to divide should the relationship end.
These agreements are a way for a couple to control the manner in which they would like to divide any assets, determine spousal maintenance if applicable, and unwind any personal property issues. Without an agreement, the laws of the state of Washington will largely dictate the course and framework for a divorce case and eventual settlement or litigation. A valid prenuptial agreement or similar agreement gives you the opportunity to control the way you would like to unwind things if it is ever necessary.
We do not drive around with car insurance because we expect to get in an accident. We don't have homeowners' policies because we plan for the house to burn down. The same goes for a marriage. We don't enter a marriage expecting that it will fail and expecting to eventually be looking for the help of a divorce attorney. Nonetheless, it happens and a valid agreement can negate the need for large monetary losses and give you control over the framework of a divorce process or relationship ending.
It is my belief that if you are marrying someone, you should be mature and responsible enough to sit down with them and talk about things like finances, planning, and how you would like to handle them during a marriage. There is no reason that a prenuptial or post nuptial agreement cannot and should not be part of that conversation. It can be a difficult conversation to have because there can be stigma attached to getting a prenuptial agreement. Fortunately, much of that stigma has begun to fade away with more education surrounding the issue but knowing when and how to bring this up with your partner can still be tough. If you are thinking about having an agreement drafted, a conversation with your attorney can go a long way to helping suggest the way to have this talk and approach the situation. When I meet with clients I always talk with them about how to address it with the other party, ask whether it's something that has already been discussed, and help strategize the best way to have what can be a difficult conversation and turn it into a very positive one.
Often one party will assume that because the other party wants to enter into a prenuptial agreement that they are in some way trying to disadvantage the other future spouse. The reality is a valid prenuptial agreement will be fair on its face and will clearly spell out the terms and will be negotiated by both parties, each with their own independent legal advice and representation.
What about the people that say they don't need a prenup because they don't “have anything?” Prenups are far more about what you will have then what you do you already have when you enter into a marriage. You might get married in your 20s or 30s and have little to no retirement, but fast forward 10 or 15 years, and you have a hefty 401(k) account that would otherwise be subject to a division in a divorce. You might not own a home but buy one during the marriage. You might be working an hourly job right out of college when you get married, but later will have a different kind of career and income. Life changes and people grow. A solid prenuptial agreement will help when you anticipate those changes and set you up for things that are likely to happen in the future. You might decide in your marriage that one partner will stay home and raise children. This is something that also should be discussed and contemplated before entering into a prenuptial agreement.
Why would you get a post nuptial agreement?
The answer to that is easy: because you didn't get a prenup. A valid prenuptial agreement should be executed in its entire ready at least 30 days before entering into a marriage, in many cases it is done earlier. If you waited too long or if you've been married for a while and would like to determine the right and liabilities of each partner in a marriage should the marriage and, you can easily do a post nuptial agreement instead of a prenuptial one and get the same protection and certainty. A post nuptial agreement functions very much like a prenup, except that it is done after a couple is married rather than in contemplation of marriage.
What about couples that are not married at all but who are in cohabitation? Couples in this situation in the state of Washington would be very wise to enter into a cohabitation agreement. Washington recognizes what are known as “Committed Intimate Relationships.” This means that living together in Washington can have financial and property implications for unmarried couples that can result in the division of property when a relationship ends.
For more information on whether one of these agreements is right for you, feel free to reach out to our office to discuss. Helping parties with prenuptial, post nuptial, and cohabitation agreement are one of my favorite things to do in my own family law practice. The reason why is simple: It is a way that we can help couples avoid financial crisis and conflict later, by providing them a roadmap and agreement that hopefully they never need, but that can offer significant peace of mind.
The last word of caution: Don't believe everything you read online! Ironic, since you are reading this, I know. However, many people will do their own online “Google research” and have their own ideas about what makes a prenup valid, whether they need one, or what can happen in the divorce or separation process. Many online publications are inaccurate, may refer to materials from other states, and might not pertain to your situation. If you are in a situation where you are worried your relationship may end, you are in a relationship that is leading to marriage, or you have just moved in with a partner, it is a great time to reach out and get a consultation on the specific facts of your situation determine what's right for you.