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Understanding the Role of Prenuptial & Postnuptial Agreements

Curiale Hostnik PLLC June 24, 2021

No one really wants to think about divorce when they are preparing to get married. Still, more than 20,000 couples divorce every year in the state of Washington. Divorce rates being what they are, some couples may be wise to plan ahead should they choose to dissolve their marriage down the road.

While marital agreements are often viewed as entering a marriage with the expectation that it will fail, they provide protection for both spouses. Having marital agreements in place can often help make both uniting and dividing a little easier.

At Curiale Hostnik PLLC, we work with couples in Tacoma, Puyallup, Gig Harbor, University Place, and Pierce County, Washington to draft prenuptial and postnuptial agreements that will protect both spouses should the marriage fall apart.

Marital Agreements in Washington

Marital agreements are legally binding contracts that address the rights and responsibilities of couples during the marriage, and how assets, liabilities, and other property might be divided if the marriage ends or if one spouse dies. The latter is particularly important when protecting a business established by one party’s family or protecting the inheritance of children from previous relationships and the current marriage.

As implied by their titles, a prenuptial agreement is entered into by a couple when they are “in contemplation of marriage” and go into effect upon their marriage. A postnuptial agreement is drafted and signed after the couple is married. Marital agreements cover a variety of different issues including:

  • The ownership of property

  • Ongoing ownership and management of existing and future assets

  • Any requirement for spouses to maintain life insurance

  • Alimony amounts and duration or a waiver of the right to alimony in the vent of divorce

  • Child custody and child support agreements

Although the agreement can include provisions for child custody and support in the event of divorce, there is no guarantee such provisions will be approved by the court. If the terms of child custody and child support are challenged, the judge has the authority to review and if necessary, revise those terms. The court is the final arbiter of child custody and child support matters.

Reasons for a Marital Agreement

Many believe marital agreements only protect the assets of a wealthy spouse from a poorer one or are entered into because one or both of the parties believe the marriage will fail before it even begins. Another myth is that prenuptial and postnuptial agreements harm the less wealthy spouse.

The fact is that well-crafted marital agreements protect both parties. An agreement can obligate a wealthier spouse to not leave a poorer spouse “high and dry” in a divorce, particularly in a community property state like Washington where only marital property is subject to division.

Although with couples entering marriage when one party is not considerably wealthier than the other, there are other factors that make a marital agreement a useful tool, including when one or both spouses:

  • Enter marriage with considerable debt

  • Own valuable real property, businesses, or other assets

  • Have been married before

  • Have children from prior relationships

Why Martial Agreements Are Important

In addition to protecting each spouse’s interests, marital agreements give the parties a legal contract that sets clear expectations that will make dissolving the marriage smoother and less stressful should things fall apart.

Pre- and postnuptial agreements require each party to fully disclose all assets and debts. That knowledge is vital when couples entering marriage have detailed conversations about their priorities and expectations for the marriage and in the event of divorce. Once married, marital agreements protect both parties when emotions, family dynamics, finances, or their relationship change.

Enforcing Marital Agreements

There are several key factors to ensure that your marital agreement is enforceable in court:

  • It must be in writing and signed by both parties before a notary

  • Both spouses must fully disclose all assets, liabilities, and income, and include a comprehensive list of them in the agreement

  • The attorneys for each party must also sign the agreement, testifying that their clients understand the agreement and did not sign under duress

If the couple signs a prenuptial agreement but does not get married, the agreement is unenforceable. The agreement may also be unenforceable if the court finds that a party signed under coercion or duress, that both parties were represented by the same attorney, or that either party failed to fully disclose all assets, liabilities, and income.

Hire An Experienced Family Law Attorney

Having a detailed prenuptial or postnuptial agreement does not set your marriage up to fail. These legal contracts provide protection for both spouses and peace of mind should they divorce later on. It is wise to consult with an experienced family law attorney to draft a plan that will achieve your goals and be enforceable in court.

If you are contemplating marriage or are married but wish to protect your interests should the marriage fail, call us at Curiale Hostnik PLLC to schedule an appointment to talk about your goals. We serve individuals and families in Tacoma, Puyallup, Gig Harbor, University Place, Lakewood, and Pierce County, Washington — so call our office today to schedule a one-on-one consultation!