What Are The Perils Of A Prenuptial Agreement?

If you are getting married, congratulations! So much exciting preparation can go into embarking on a new life with your spouse. However, leading up to marriage, few preparatory steps are less romantic than negotiating a prenuptial agreement (“prenup,” for short). If you and your future spouse have broached the topic of this type of agreement, we imagine you have plenty of questions about what to expect. This article can help you understand some of the perils of a prenuptial agreement while you weigh your options.

What Is the Purpose of a Prenuptial Agreement?

There are many reasons a couple venturing into marriage might opt for a prenuptial agreement. Reasons for entering into a prenuptial agreement are unique and very personal. Although reasons differ, many have to do with having some amount of control over the unexpected.

In a standard Washington divorce, the court divides the marital community property and debts. The court makes this division according to what it deems equitable at the time of divorce.

However, this division is not always 50/50. Rather, it depends on the length of the marriage and each spouse’s separate property, community property, and economic circumstances. The court might also order spousal maintenance, depending on the characteristics of the marriage and each spouse. When written on paper, the standard divorce process can sound clinical and straightforward. However, many of us know that spousal fights over property and maintenance can be legendarily traumatic during divorce proceedings.

An engaged couple contemplating a prenuptial agreement might believe that allowing a court to divide assets after a marriage has soured is too risky. Or a couple might have certain assets they think need special protection in a prenuptial agreement. An engaged couple might also dislike the law’s methods for dividing property and debts in a divorce. A prenuptial agreement can help soon-to-be spouses make their own decisions about how to run their relationship and how to part ways (if it comes to that).

On the surface, a prenuptial agreement may seem like a reasonable course of action for many. But do couples need to be concerned about prenuptial peril? The answer is yes, so we will cover some of those perils below.

Perils of Prenuptial Agreements

There may be possible emotional complications associated with “planning for a divorce” before you marry. There are also legal drawbacks to be aware of when negotiating the terms of a prenuptial agreement.

Prenuptial Agreements Do Not Cover Everything

If both you and your spouse are happy with the prenuptial agreement you enter, don’t assume that everything is going to be smooth sailing during a potential divorce. Along with deciding how to distribute assets, debts, and maintenance, divorce courts also determine child support and custody issues. In general, divorce courts do not enforce the terms of a prenuptial agreement that involve child custody and child support. Those matters are usually determined according to the child’s needs and the parent’s financial resources at the time of divorce. Since your child’s needs and your economic situation at the time of divorce cannot be accurately predicted years in advance, any attempt to resolve those issues in a prenup are often discarded. If you have children from your marriage and a prenuptial agreement, do not assume that those issues are covered. You will still need to prepare to defend your parental rights and obligations regarding your children in divorce court.

Prenuptial Agreements Don’t Always Account for Changing Circumstances

You know that a marriage can change, and so can financial circumstances. Some of the perils of prenuptial financial agreements include:

  • The fact that the agreements are normally binding; and
  • The agreement terms might turn from favorable to unfavorable as circumstances and finances change during the marriage.

Let’s look at an illustrative example.

You might think it is a good idea to enter into a prenuptial agreement that does not allow your spouse to have any share of a business they helped you build in exchange for giving them the majority of other community assets. But if your business fails before you divorce, you could find yourself in dire financial straits because you cannot fall back on the community assets you promised to your spouse. Regardless of the subsequent inequity, a court will normally enforce the terms of a prenuptial agreement against you (good or bad) unless:

  • There was procedural unfairness—such as a lack of knowledge about the property values involved, a lack of opportunity to seek legal advice, a lack of knowledge about your rights, or coercion; or
  • There was substantive unfairness—meaning that the agreement did not make fair and reasonable provision for the spouse who does not want the agreement enforced.

Although you may regret the terms of your agreement after your circumstances change, that regret does not mean that your agreement was procedurally or substantively unfair. Washington public policy generally favors enforcing prenuptial agreements.

You might have to think 10 steps ahead to help make sure your agreement helps you in the ways you intend. This information can be overwhelming. But you can ease your fears about entering into a prenuptial agreement by using the help of a skilled family legal matters attorney.

Speak to a Lawyer to Protect Yourself Properly

So how do you draft a prenuptial agreement that is flexible enough to account for future changes and strong enough to protect you in a divorce battle? Speaking to an attorney is often your best option. Our legal team at Bolan Law Group., has over 50 years of combined experience. We give open and honest representation and assessments of our clients’ best options. Our lawyers are skilled, we are compassionate, and we include you in the legal process from start to finish. Our aim is to give you the simplest and most effective solutions to your legal issues. Give us a call today or contact us online to request a consultation.

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