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Postnuptial vs. Prenuptial Agreements in Washington State

Postnuptial vs. Prenuptial Agreements in Washington State

The main difference between a prenuptial agreement and a postnuptial agreement is the timing. A prenuptial agreement is created and signed before a couple gets married, while a postnuptial agreement is created and signed after a couple gets married. Yet, when it comes to prenups, timing is everything, and can have implications for the enforceability of these contracts, as we’ll explore in this article.

While few couples want to think of the contractual aspects of marriage, the reality is this—marriage is a legal contract that has financial implications. Most couples readily acknowledge that marriage can have diverse emotional, social, and even spiritual meanings to different people, while few couples make allowances for difference when it comes to deciding what marriage will mean for their financial and legal lives. According to NPR, only approximately 15 percent of married or engaged couples have signed a prenup.

Few people would think of entering any kind of major partnership without a contract in place, but so many people go into marriage often unaware of the terms of the contract they are entering, or the financial consequences of entering this contract. When you get married without a prenuptial agreement, you are basically agreeing that Washington community property laws will apply in your marriage, which means these laws would apply should you ever get divorced.

Prenuptial and postnuptial agreements give couples the chance to look more closely at how marriage will affect their financial and legal lives. These agreements allow couples to make conscientious decisions about how they want their marriage contract to work.

A prenuptial agreement offers couples the opportunity to learn more about how their assets, property, and debts would be treated under Washington law should they get married and allows a couple to make conscientious decisions about how they want their assets, property, and debts handled during their marriage. For couples who didn’t sign a prenuptial agreement before they got married, it’s not too late. A postnuptial agreement allows a couple to assess how Washington’s community property laws affect their separate and shared assets and allows the couple to make conscientious decisions about how they want to manage the financial aspects of their marriage going forward.

Both prenuptial and postnuptial agreements are contracts that define community (shared) and separate assets, and address how community assets would be divided should the couple choose to divorce. In a divorce, community assets and debts (that is, assets and debts acquired during the marriage) are subject to division. Most people think of prenuptial and postnuptial agreements as contracts that look toward divorce, but prenuptial and postnuptial agreements are so much more than this!

While the debts one partner brings into a marriage are typically considered his or her own separate debts under Washington’s community property laws, things can get complicated if you and your partner get married and share community bank accounts or assets. Washington law RCW 26.16.200 states that “neither person in a marriage or state domestic partnership is liable for the debts or liabilities of the other incurred before marriage” and “funds in a community bank account which can be identified as the earnings of the nonobligated spouse or nonobligated domestic partner are exempt.” Yet issues can arise if community accounts are comingled so completely that it is difficult to distinguish the earnings of one partner from the other. A prenuptial or postnuptial agreement can sometimes offer clarity.

And while separate property and business interests owned prior to marriage are typically considered separate property and separate business interests, situations can arise during a marriage that can lead to muddied waters on these separate claims. For example, if a business you own grows in value during your marriage due to community investment, or if your marital partner helps make improvements to a property you owned prior to marriage, these gains could be potentially seen as community property and subject to division in divorce. If your partner plans to take on student loan debt to attend medical school or law school, or if your partner will take out loans to start a business, a prenuptial or postnuptial agreement can offer clarity about whether these debts are to be considered shared or separate.

Without a prenuptial or postnuptial agreement in place, with only a few exceptions, the money you make, property you acquire, or debts you take on during your marriage would generally be considered community property, or shared assets or debts under Washington’s community property laws.

A prenuptial agreement is a contract signed by a couple before they get married that lists the assets and debts each person brings into the marriage and outlines what assets and debts acquired during the marriage will be considered community property (shared property) and what assets and debts will be kept separate. This can offer clarity when it comes to financial decisions made during the marriage and potentially offer protection should one partner face a business claim, a lawsuit, or other financial claim. A prenuptial agreement will outline what will happen to community assets and debts should the couple get divorced. Furthermore, a prenuptial agreement can also include guidance regarding how a couple will proceed with divorce should they choose to get divorced. For example, in Washington state, couples can choose mediation, collaborative divorce, or arbitration as their preferred method to negotiate and file for divorce.

A postnuptial agreement can include many of the provisions included in a prenuptial agreement, but because the couple is already married when the contract is written, the couple may need to evaluate the current state of their marital estate under Washington’s community property laws. Without a prenuptial agreement in place, Washington’s community property laws apply.

In most cases, couples sign a prenuptial agreement long before they get married. Yet, some couples recognize the importance of a prenuptial agreement either too soon before their wedding date, or after they are already married. In other situations, a couple’s circumstances change, leading the couple to decide that a postnuptial agreement is needed.

In this article, we’ll explore circumstances where couples might consider a postnuptial agreement, and some things to keep in mind if you choose to pursue a postnuptial agreement. Topics we’ll explore include:

The Importance of Timing and Your Prenup

If a prenuptial agreement is signed too soon before the marriage takes place, it could be considered unenforceable by a judge, especially if a judge believes one party signed the prenuptial agreement under duress. The courts have these provisions in place to protect people from being forced into prenuptial agreements. Imagine a situation where a spouse threatens to call off the wedding unless his or her partner signs a prenup. Wedding venues have been paid for, invitations have been sent out, travel plans have been made, the cake ordered and paid for. If the prenup comes under scrutiny in a divorce, the courts might view such a contract with suspicion. Because of these concerns, many lawyers will encourage couples to begin the prenup process soon after the engagement, and long before they make any wedding plans, wedding bookings, and before any wedding attire is purchased or invitations are sent out.

According to the book Prenuptial Agreements: How to Write a Fair and Lasting Contract, you’ll ideally want to start working on your prenuptial agreement at least three months before you get married. For a prenuptial or postnuptial agreement to be considered enforceable, both parties must generally each be represented by their own attorney. (You could theoretically both choose to work out your prenup or postnup without lawyers entirely, but this can be difficult to do without a strong foundation in community property laws or divorce law.)

Finding a prenuptial agreement lawyer in Seattle, Washington can take time, so it’s wise to get started on the process as soon as you know it’s something that’s important to you and your partner. If you’ve already made significant wedding arrangements, or if your wedding will take place soon, and you want a prenup, you may want to speak to a lawyer about whether a postnuptial agreement or prenuptial agreement is your best option.

If you’re getting married and are thinking about a prenup, you may want to consider the collaborative process. Truce Law is a collaborative law firm in Seattle, Washington that helps couples negotiate prenuptial and postnuptial agreements using the collaborative process. Contact our family lawyers today to learn more.

Benefits of a Postnuptial Agreement if You’re Starting a Business

If you plan to start your own business and are married but want to keep your business interests and liabilities separate from marital property, you may want to speak to a family lawyer about whether a postnuptial agreement is right for you. While a business lawyer can assist you with setting up a business structure, there are aspects of the process that an LLC or other business structure may not protect in the event of a divorce.

For example, if you plan to use community assets or property to start up your business, your partner may have a stake in your share of the business, even if you are setting up a partnership or corporation. If you plan to use your pre-marital assets to launch your business, a postnuptial agreement can clearly distinguish between separate and shared assets so there is no confusion. Just having your name on a deed doesn’t necessarily mean an asset is solely yours. A postnuptial agreement lawyer in Seattle, Washington can help you evaluate your situation, delineate between separate and shared asserts, and help you and your former partner craft a postnuptial agreement.

A postnuptial agreement can offer clarity regarding each partner’s stake in the business, clarify one partner’s sole stake in the business, and potentially protect community property from business liabilities. These situations can be complicated and may require multiple legal structures to accomplish. Sometimes a couple may need to hire accountants, financial planners, and other professionals to help them negotiate their postnuptial agreement.

Postnuptial Agreements and Your Inheritance


While an inheritance or gift is typically considered the separate property of the person receiving the gift or inheritance under Washington’s community property laws, there are situations where marriage can muddy the waters. If you use an inheritance or gift to make improvements on shared property, buy property, use it to pay off one’s partner’s separate debt, or put money in shared bank accounts, the gift or inheritance could potentially become comingled with community property. One way to prevent confusion is to sign a postnuptial agreement, to formally discuss how an inheritance will be managed in your marriage.

Family Planning and Postnuptial Agreements

Life can change after a couple has children. A couple that may have planned to stay in the workforce may suddenly find themselves with different priorities and goals after they have children. If you plan to stay at home to raise or care for the children, a postnuptial agreement can put provisions in place to make sure you’re taken care of financially should you ever get divorced. A parent who stays at home to raise the children may make significant career and financial sacrifices. If you were to get divorced, the parent who stayed home may need time to gain additional work training or education or may need money to make up for the lost income or time in the workforce. Furthermore, the stay-at-home parent may not have an employment-based retirement account. A postnuptial agreement or prenup could help a couple think about retirement planning and financial planning, especially if one parent will stay home to raise the kids. A postnuptial agreement can help you and your partner evaluate the costs and benefits of staying home to raise the children, and make sure that the partner who makes sacrifices is protected.

Educational Planning and Postnuptial Agreements

Life plans can change during a marriage. If your partner decides to change careers, pursue additional education, or if one partner will support the other while the other pursues a medical degree, law degree, or other advanced degree, a postnuptial agreement can offer clarity about community assets and debts going forward. For example, will a partner’s student loan debt be considered a separate debt or community debt? Will spousal maintenance be required in the future if one partner supports the other through school, especially if one partner’s marital contributions were greater early in the marriage with the understanding that the other partner’s contributions would be greater later in the marriage? A postnuptial agreement can offer clarity on these matters.

Changing Your Prenuptial Agreement

Your financial situation and lives are likely to change as your marriage progresses. Your prenuptial agreement should reflect these changes. Over time, a prenuptial agreement may need to be updated to reflect your evolving financial and personal realities. If you want to re-evaluate your prenuptial agreement or make changes to your existing prenuptial agreement, you’ll want to speak to a family lawyer in Seattle, Washington.

Divorce and Postnuptial Agreements

If you and your partner are thinking of getting divorced, or are facing marital difficulties due to finances, a postnuptial agreement can help you set the groundwork for your divorce, and possibly help you work through your financial issues. For example, if a point of conflict in your marriage is your partner’s credit card habits, gambling, or other spending, a postnuptial agreement could address these concerns. You can decide how you want to file for divorce, and formally choose mediation, collaborative divorce, or arbitration. If you and your partner choose to arbitrate your divorce, your postnuptial agreement can outline how arbitration will be handled, and how you’ll go about selecting an arbitrator. A postnuptial agreement can be a good opportunity for you and your partner to discuss important financial matters especially if you’re contemplating divorce. You and your partner can distinguish between separate and shared property and discuss how property would be divided should you decide to divorce.

Next Steps

In general, a prenuptial agreement is a more straightforward matter than a postnuptial agreement. Because a couple makes decisions before the marriage, a prenuptial agreement will involve the full disclosure of each couple’s separate assets and debts with the couple clarifying whether separate assets and debts will be kept separate or will be shared. The couple can also discuss what aspects of their financial lives they want to comingle and what aspects they want to keep separate.

When couples write a postnuptial agreement, community property laws already apply, and lawyers need to first distinguish between separate and community property before negotiations can begin, and before decisions can be made. If one partner has more wealth than the other, or if one partner is the family’s primary breadwinner, a postnuptial agreement lawyer can help you understand the importance of crafting a fair agreement and concerns the court might raise in such situations.

If you are thinking about a prenup or postnup, you may want to speak to a family lawyer today. One option couples have when creating their prenup or postnup is to choose the collaborative process. Truce Law is a collaborative law firm in Seattle, Washington that helps couples with prenups and postnups.

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