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Ironclad Prenup

The concept of the ironclad prenup has gained some traction in recent years thanks largely to media coverage. Read through any recent celebrity divorce article and you’ll likely come across someone’s so-called “ironclad prenup” sooner rather than later. With the idea being picked up by major media outlets like Forbes, where you can read about “The Perfect Ironclad Prenuptial Agreement,” it’s no wonder many family lawyers have jumped onto the trend, some even offering guides to creating an ironclad prenups. Here’s the truth. The “ironclad prenup” is more marketing myth than reality.

Celebrity gossip often resides in the truth-adjacent realm, and so too is the idea of the ironclad prenup. Because language is open to interpretation, every legal contract is also open to interpretation. No contract can ever truly be called “ironclad.”

This is not to say that couples should give up on the idea of having a prenup altogether. Nor should they give up on making their prenup as strong as possible. Many prenups do hold up in court. A good family lawyer can write your prenup in clear and concise language and help you and your future partner take the necessary steps to make your prenup the strongest it can be. There are many factors that can weaken or strengthen a prenuptial agreement.

But there are factors that are outside your lawyer’s control. One factor that goes into making a strong prenup involves honesty on the part of the parties entering into the agreement. If your future ex had offshore bank accounts, and he or she didn’t disclose this during the writing of your prenup, it doesn’t matter if you had the best lawyer in the world draft up the most “ironclad” of ironclad prenups—a prenup based on false disclosures isn’t likely to hold up in court. Ultimately, your family lawyers should always be asking, “is this prenup likely to meet strict legal standards of fairness and full disclosure, that will make it more likely to be upheld in court?”

And even the most ironclad of ironclad prenups might not hold up in court if it was signed hours before the wedding, if both parties didn’t have legal representation of their own when the prenup was signed, and if the prenup leaves one partner on welfare.

Can your family lawyer really promise you an “ironclad prenup?” “Ironclad” means “unbreakable.” When it comes to drafting a legal document, whose validity is dependent on honest disclosure and future judicial review, it is impossible to say that any legal document is truly “ironclad.”  That said, your family lawyer in Seattle, Washington can take steps to help you understand ways that you and your future spouse can make your prenup stronger and make it more likely that it will hold up in court.

If you take a close look at media reports of celebrity ironclad prenups, the articles seldom provide details about whether these so-called “ironclad prenups” held up in court, and because many celebrity divorces are settled in private, either through the collaborative divorce process, through arbitration, or mediation, it isn’t always clear whether the prenups were ultimately honored as they were written. When we hear that a prenup is ironclad, what it more likely means is that the prenup offered sufficient clarity during divorce proceedings to prevent a long-drawn-out process.

Ironclad Prenups in the Media

So much in Los Angeles exists in the province of fiction and illusion—from the studio sets selling exotic locations to the plastic surgery that hides the stars’ true ages. The “ironclad prenup” has infiltrated the legal lexicon without existing on the law books. That doesn’t stop the media from using the term. Many celebrity divorces that end amicably often involve some kind of so-called “ironclad prenup.”

Us Weekly offered readers a glimpse inside Britney Spears and Sam Asgahari’s “ironclad prenup,” one that reportedly “tightly” guarded “the singer’s estimated $60 million fortune.” Yet, a closer look at the article reveals that Asgahari likely won’t walk away empty-handed in their divorce. The “ironclad prenup” reportedly capped Asgahari’s claim to Spears’ wealth should they ever get divorced at $10 million but limited him to claiming $1 million for every two years of marriage (the couple split 14 months after they got married). Page Six later reported that Asgahari wanted to re-negotiate the prenup to receive more money. As of this writing, their divorce has still not been finalized, likely due to these ongoing negotiations.

In another high-profile celebrity split, Page Six notes that “Tom Brady and Gisele Bündchen had ‘an ironclad prenup’ that allowed their divorce to be settled swiftly.” An unnamed source in the article claimed that “There was an ironclad prenup set down before they married in 2009.” A closer look at the details of the divorce as reported by Page Six reveals that the prenup likely covered the couple’s separate business entities. It isn’t clear whether the couple’s so called “ironclad prenup” addressed properties the couple acquired after they were married. Page Six acknowledges that a “major factor” in their divorce involved “dividing up their massive property portfolio.” Granted, Brady and Bündchen’s prenup is an example of a good one: it’s likely backed up by the couple’s distinct business entities.

Brady and Bündchen’s divorce is an example of a situation where a prenup works, especially for high net worth couples. In cases where celebrity divorces do go smoothly, their prenups are often backed by other legal and financial asset protection mechanisms (like maintaining separate business entities). Yet, even when celebrity couples have so-called “ironclad prenups” in place, disputes can arise.

Why a Prenup Can’t Be Ironclad

There are many reasons why a prenup can’t be considered “ironclad,” but they come down to three major factors: human error, unforeseen changes in circumstance, and judicial discretion. Let’s explore each of these briefly.

  • Human Error. If you accidentally fail to disclose one of your assets, income sources, or debts, your prenup could be thrown out. Sometimes people intend to keep assets separate, but as time passes, they might accidentally comingle assets (like funding separate retirement accounts with marital income). If this happens, the prenup could be up for dispute.
  • Unforeseen Changes in Circumstance. Let’s say when you sign your prenup you’re very rich and your partner doesn’t have much money, but by the time you get divorced, your partner’s acting career takes off or he or she sells her company for a billion dollars. Unforeseen changes like this could potentially impact your prenup or negotiations around your divorce.
  • Judicial Discretion. At the end of the day, your spouse can always choose to challenge the prenup in court, and if this happens, it will be up to a judge to decide, unless you choose to file for collaborative divorce or agree to mediation.

If you’re looking for a peaceful way to negotiate your divorce with a prenup, Truce Law is a collaborative divorce law firm in Seattle, Washington that may be able to help.

What Makes for a Stronger Prenup?

Okay, so I can’t have an ironclad prenup, but what factors can make my prenup as strong as possible?

Here are some crucial questions you can ask yourself (and that your prenup lawyer can ask you) as you write your prenup that can affect the strength of your prenup:

  • Are both parties being fair to one another?
  • Did both parties fully and honestly disclose all their assets?
  • Did the prenup clearly explain how property and assets would be divided in a divorce?
  • Did the prenup address spousal support?
  • Is the prenuptial agreement written clearly and is it in compliance with Washington state law?
  • Did both parties have sufficient time to consider and negotiate the prenup?
  • Is there any implication that one party was forced to sign the prenuptial agreement (for example, by being presented with the document shortly before the date of the wedding)?
  • Was the prenuptial agreement signed by both parties and properly witnessed?

Let’s look at some key things that you can consider as you draft your prenup that can strengthen the agreement.

  • Fairness. When judging whether a prenuptial agreement should hold up in court, a judge will look at whether the agreement is fair. Now, of course, concepts of fairness can vary from person to person, but there are some things that most people can agree upon. For example, each spouse should have his or her own attorney. You want to eliminate any idea that the negotiation process was imbalanced, coerced, or forced in any way. When drafting the prenuptial agreement, both parties should be aware of what their rights would be under Washington state law without the agreement, so that they understand what rights they are potentially giving up and protecting by signing the prenup. Many people who sign prenups enter a marriage with their own businesses, assets, and intact financial lives, and they intend to keep those lives separate from their romantic lives. A prenup can help protect these rights and clarify ownership.
  • Don’t Leave Your Ex Destitute. If the prenup you draft sets the stage for one person to end up penniless and houseless and the other person to end up rich with five houses and all the money in the bank, the prenup is not likely to hold up in court. Don’t put a judge in a position where enforcing a prenup means putting you ex on public assistance.
  • Don’t include provisions that break the law. Under Washington law, children should be supported by both parents. Don’t think that you can put a clause in your prenuptial agreement that protects you from having to pay child support and get away with it. You also cannot include any custody plans in a prenuptial agreement.
  • Transparency. Both parties must fully disclose their assets and their net worth. Some lawyers even recommend that clients overestimate their net worth to protect against error. Any impression of fraud (falsely underestimating your net worth) or failure to disclose assets (even if it was in error) could get a prenup thrown out.
  • Timeliness. The time to draft and negotiate your prenup is shortly after you get engaged, or long before you begin wedding planning, and not after you’ve booked a wedding venue, sent out invitations, and picked out a cake. The courts do not look favorably upon legal contracts that appear to be forced or pressured. If you show up at your fiancé’s door the night before the wedding and ask her to sign a prenup, the prenup isn’t likely to hold up in court.
  • Undue Influence. You can’t ask your spouse to sign a prenup as a quid pro quo. If your spouse works for your dad, and your dad asks your spouse to sign the prenup “or risk losing his job,” the likelihood of the prenup holding up in court drops dramatically.
  • Clarity of Legal Language. How your lawyer writes the prenup matters. There are many cases where the way the prenup (or any contract, for that matter) was interpreted in court wasn’t how the person writing the contract intended it to be interpreted. Having very clear language that specifies what property is marital (or shared) property and what property is separate is very important. In the stronger prenups, couples put additional financial and legal mechanisms in place to ensure that property they intend to keep separate remains separate, for example, by ensuring that only one person is the registered business owner for any businesses meant to be kept separate, or that only one person’s name is on the title of separate property, accounts, or assets.
  • Be Clear About Marital Property and Separate Property. Under Washington law, any property acquired during a marriage is considered marital (or shared) property, by default. If you plan to change this, you’ll need to be very specific about what property you plan to keep separate or shared.
  • Make Sure the Prenup Addresses all Important Issues. This goes back to clarity of legal language, but having a lawyer that thoroughly addresses all issues that can arise when writing your prenup can make all the difference between a prenup that seems ironclad and one that feels like a not-so-fun house of surprises should you ever get divorced. If you don’t want to pay alimony, say so. If you want to keep your business entities or financial interests separate, make that clear. If you don’t want to create community property during your marriage and keep all assets separate, write it out. If you want to keep the dog, put it in the prenup. If you don’t want your ex writing a tell-all memoir about your marriage, add a confidentiality clause. If you don’t want to pay for your ex’s legal fees, write this out in the prenup. Just keep in mind that the prenup must be fair. If you are wealthier than your partner and don’t want to pay alimony, that’s fine, but be prepared to offer some kind of financial safety net that either involves some kind of property or payout.
  • Include a “triggering event.” Let’s say you know you will be getting a big bonus next year, but plan to file for divorce this month. Without a “triggering event” in your prenup, if your divorce drags on, your ex could potentially try to claim the bonus as marital property. By including a triggering event in your prenuptial agreement, you make clear the exact moment you want to consider your assets separate. Some couples might note that filing for divorce is a “triggering event” while others might say that serving notice is sufficient.

A lot goes into getting a prenup right. If you are thinking of getting a prenup, hiring a lawyer who can be thorough and clear is essential. Truce Law is a family law firm in Seattle, Washington that can help you create the strongest possible prenup for your situation. No, we can’t promise “ironclad,” so much depends on you and your partner’s financial disclosures and timeliness. But we can ask tough questions, help you understand what goes into a strong prenuptial agreement, and help you articulate these wishes in your agreement. Furthermore, we can also refer you to financial planners and other specialists who may be able to help you put other financial and legal mechanisms in place to further protect your assets in accordance with your wishes.

Prenups in Washington State

Some states have very specific requirements for prenuptial agreements. In Washington state, Washington contract law applies to prenuptial agreements. So, for your prenuptial agreement to be enforceable, it should be put down in writing and signed by both people before a notary, and the prenuptial agreement should also contain the full disclosure of assets, debts, and sources of income of both parties.

While a prenuptial agreement is governed by contract law in Washington state, there are still things you’ll need to consider when drafting the prenuptial agreement. The prenuptial agreement should be fair and shouldn’t leave one partner destitute.

Hire a Prenup Lawyer

No prenup lawyer can promise you an ironclad prenup. But a prenup lawyer well-versed in divorce law and in contract law can help you craft a prenup that is more likely to stand up in court. Most people who are looking for ironclad prenups are looking for peace of mind, knowing that should divorce happen, everyone is clear on where they stand and what will happen. Truce Law is a prenup law firm in Seattle, Washington that works with clients to help them create strong prenuptial agreements. We also work with clients who are getting divorced to help them enforce prenups and file for divorce when a prenup is in place. Whatever your situation, we are here to learn more about it, and help. Contact us today.

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