When a couple is considering marriage and there are considerable assets involved, the thought of a prenuptial agreement may seem prudent. A prenup is a contract between two would-be marriage partners that determines how assets will be divided in the event of divorce or death of one partner. There are many websites that offer cheap or free “prenuptial agreements” for download, leading people to think that a prenup is a simple document that can be prepared without legal help. However, here’s what you need to know about creating a legal prenuptial agreement for your marriage.
Washington State Prenuptial Agreements Are Complex Legal Documents
Prenuptials are, at their heart, a type of contract like any other. However, in order to be considered valid and legally enforceable, certain requirements need to be met. The courts generally take a dim view of any document that forces a person to sign away rights that have already been granted by the law. That’s why it’s important not only to have legal representation, but for each partner to actually have separate legal representation when drafting a prenup. You may even enlist the help of a professional mediator to help you negotiate the terms of your prenuptial agreement together.
Your attorneys will help the two of you work out an agreement and draft a prenup document that is agreeable and fair to both parties. Some of the most common provisions addressed in a prenup include:
- How assets are divided. Asset division will help determine which assets will be separate or non-marital property and stay with the original owner. In order for this to be valid, a prenup typically requires full disclosure of assets from each partner. If any assets are hidden at this point, it can invalidate some or all of the agreement.
- Alimony. In the event of divorce, spousal maintenance can be agreed on ahead of time. For example, this is typically used to protect the rights of one spouse who is married to a high-earning partner but stays at home to take care of the children.
- Financial responsibilities. A prenup may lay out certain financial responsibilities for each partner during the marriage, with penalties if these responsibilities aren’t met.
- Inheritance. A prenup can allow certain assets to pass to children instead of a spouse in the event of death. This may be especially important when there are children from a previous marriage to consider.
It’s important to note that child support and child custody are not included in this provisions list because neither are valid items for a prenuptial agreement Your prenup may also include a termination of end-of-contract clause that puts a time limit on the terms of the agreement. After this time has passed, the prenup will no longer be in effect. If a divorce happens after this time, regular state laws on asset division will be used.
Invalidating a Prenuptial Agreement
When the court is considering whether or not your prenuptial agreement is valid, it will look at a few different factors. The court may invalidate a prenup for the following reasons:
- Technical errors. If your prenuptial isn’t completed to legal standards and is riddled with mistakes, it’s not likely to be enforceable.
- No legal representation. If one partner doesn’t have an attorney to review the document and protect his rights, the court may invalidate the agreement.
- Coercion. Being forced into a contract, whether by physical, verbal, or emotional force or abuse, is not considered legally binding, and the prenup will be invalid.
- Disproportionate terms. Although the dollar amounts don’t have to be equal, when the agreement is severely in favor of one partner at the expense of the other, the court will not uphold the agreement. Prenups should never leave one partner destitute.
While you can download generic prenuptial forms from many sites on the internet, only an attorney who knows your local and state laws will be able to help you and your partner with an agreement that’s both fair and will stand up to legal scrutiny.