What is a Postnuptial Agreement?
A postnuptial agreement is a marital agreement entered into after the marriage has already occurred. In Washington, our law recognizes that the parties to a marriage can enter into an agreement regarding each party’s obligations during marriage or after. Normally, these are called "prenuptial agreements," but even though it is too late to enter into a prenuptial (pre-marriage) agreement, it is not too late to enter into a marital agreement or a "postnuptial agreement." Such agreements can be useful in planning for the possibility of a permanent separation or a divorce. In some cases, postnuptial agreements can even be useful in avoiding bankruptcy.
Some marital agreements provide for settlement of obligations during the marriage , such as spousal support or child support, but, in general, the courts are reluctant to limit a Judge’s ability to issue child support or spousal support orders in the future consistent with changed situations. However, the Courts have recognized that postnuptial agreements may, in certain limited circumstances, enable a couple to remain married and work through issues that, otherwise, may result in a divorce.
As can be seen in both postnuptial and prenuptial situations, the parties to a marriage may enter into agreements governing many subjects regarding the rights and obligations of the parties.
For practical reasons, some people will not consider a marital agreement, such as a postnuptial agreement, until some crisis or stress has occurred in the marriage.
Washington State Requirements
For a postnuptial agreement to be binding, it must generally comply with the following legal requirements:
Written Document: The postnuptial agreement must be in writing.
Signed:
Both parties must sign the agreement.
The agreement must be signed voluntarily.
Ok in Court:
The agreement cannot be in conflict with any law causing the agreement to be void.
The agreement has to be valid as a contract – meaning that it has to convey the intent of the parties.
Disclosure:
Under Washington law, the parties must provide each other with a fair and reasonable disclosure of property or financial obligations.
After the disclosure both parties must voluntarily express agreement to the essential terms of the agreement in writing.
Execution:
No need for witnesses. Neither spouse needs to have the postnuptial agreement notarized.
The agreement must be executed voluntarily.
Under Washington law, full disclosure of assets and debts of each spouse is not required to be contained in the postnuptial agreement. Sufficient disclosure to allow an understanding of its effect on the respective rights is all that is necessary. For instance, a postnuptial agreement that is entered into whereby one spouse has full knowledge of the other spouse’s assets, and the spouse consents to the waiver of his or her statutory rights upon divorce without requiring the other spouse to make a disclosure of the spouse’s assets was found to be supported by substantial evidence and enforceable under Washington law.
Postnuptial Benefits
Postnuptial agreements come with a variety of benefits. The most obvious benefit is asset protection. As with a prenuptial agreement, there is an opportunity to create a formula for asset division while anticipating future financial and employment changes. While in life there are few certainties, couples can use a postnuptial agreement to establish certainty with regard to asset protection. This is attractive especially for those with substantial assets. Also, while postnuptial agreements are not typically revocable as they may be in some states, they can still be amended if both parties agree. This is less expensive than the cost of litigation in the event an issue arises to a degree where a postnuptial agreement is no longer an effective option to the dispute.
However, a postnuptial agreement does not always have to be about money and property. There are non-financial benefits to establishing a framework for personal responsibilities. For example, some couples sign postnuptial agreements to define exactly how much effort each person should give to housecleaning or childrearing tasks or to clarify how much money each person should contribute to a joint savings account. Establishing clear expectations can create clarity and improve a marital relationship. Establishing a framework for decision-making also protects against the cost of costly litigation in the future.
There are other reasons people may want to enter into a postnuptial agreement in Washington state. A postnuptial agreement spelled out in writing can be useful in protecting family members from other families. For example, someone whose family has significant wealth may want to protect that wealth from his or her spouse’s children from previous relationships.
Common Postnuptial Provisions in Washington State
Typical provisions in a Washington postnuptial agreement include agreements around how property will be divided should the couple decide to separate or divorce, how debt will be allocated between the parties, agreements waiving spousal support in the event of a divorce, agreements about where children will live and what visitation rights grandparents may have, and agreements for an arbitration process if the marriage fails.
If you have children, an agreement may include terms for their well-being, such as where the children will attend school, what visitation rights grandparents may have, and whether child support may be paid.
While standard templates for a postnuptial agreement are sometimes used, the agreement can be changed to meet the needs of either spouse. You can customize your agreement to feature any other considerations that are important to you. For example, you might choose to include a provision for a settlement estimate should you divorce. If you or your spouse have a business, there can also be protections outlined in the agreement to keep the business as separate property in a divorce.
There are times when people come to see me and want a postnuptial agreement to document a debt that one spouse has accumulated during the marriage. The spouse who has the debt wants it documented that the other spouse will not be responsible for paying debt that belongs solely to the spouse who owes the money. The agreement may simply reflect that the party with the debt will not seek any reimbursement from the other party after a separation or divorce.
Drafting and Enforcing Postnuptials
Each postnuptial agreement must be reduced to writing and signed by both parties in order to have full legal effect, in accordance with the Statute of Frauds.
A postnuptial agreement may provide for spousal maintenance (alimony) without being subject to the requirement imposed under RCW 26.09.070 that a court must find that provisions for spousal maintenance are in the best interests of the children and are fair to each party or, if it does not provide for spousal maintenance, may set forth the parties’ agreement about spousal maintenance in the event of a dissolution of marriage.
It is advisable for both parties to seek independent legal advice before entering into a postnuptial agreement. In fact, if one party retained an attorney and the other didn’t, generally speaking, the agreement will be scrutinized more heavily than if both parties had independent counsel.
The drafting process itself can be contentious, particularly if the parties’ relationship has already deteriorated. However, there are several suggestions that can minimize the negative impact of this process on the parties. The negotiation process should be approached from a position of good faith and a spirit of cooperation. Language should be clear, plain, and unambiguous. The goal should not be to negotiate a "winner" and "loser," or to close the door on any possibility for reconciliation of the marriage. The goal should be to provide a clearly written and fair document to govern one aspect of the parties’ relationship .
All marital property and debts should be identified and reasonably valued, and accurate income and expenditure information should be provided. It is common for either or both parties to sign an affidavit at the end of the process stating that they read the agreement and understand it.
All postnuptial agreements are subject to review by the court and will not be enforced if the court finds that the agreement is unconscionable. Unconscionability is a very high hurdle to jump, and requires both procedural and substantive unconscionability. Procedural unconscionability involves things like the clarity of the language used in the agreement, the circumstances of the agreement’s negotiation (including how unfair the language is, how rushed the process was, whether both parties had access to independent legal advice, and whether one party had superior bargaining power). Substantive unconscionability is determined by examining the terms of the agreement- whether the terms are unfair, whether one party will be paying significantly less than the other in the event of a divorce, whether the agreement can be viewed as a fair allocation of assets and debts, and whether there is a reasonable degree of fairness or normality (even if not equal) in light of the totality of the circumstances.
Although a court can refuse to enforce a postnuptial agreement on the grounds of unconscionability, there has to be a significantly high degree of unfairness or impropriety in the agreement to overcome the presumption that it should be enforced.
Potential Legal Issues and Challenges of Enforceability
Both legal and practical challenges can arise when creating a postnuptial agreement in Washington State. One of the first obstacles often encountered is reaching an agreement during the negotiation process itself. Disputes may arise over what should be included in the agreement and how assets should be divided, potentially devolving into contentious discussions that undermine the cooperative spirit needed to create a postnuptial agreement from the outset. Because this can be a time-consuming process, as well, the end goal can seem unattainable and unattractive. The time commitment, however, is a necessary part of the process in order to ensure fair and equitable negotiations.
The enforceability of the agreement can also pose a challenge in the process of creating a postnuptial agreement in Washington State. A court may review an agreement and find it to be completely unenforceable based on a variety of reasons. If the agreement is drafted in a manner that violates Washington law, or if the terms are unconscionable, an enforceable postnuptial agreement may not be possible. Even if the agreement is technically enforceable, it might not be a fair agreement. When that happens, counsel can assist in challenging the enforceability, or in creating a revised agreement better explained or better supported before a more detailed court analysis occurs (i.e., to avoid wasting time money and effort).
There can be significant consequences involved when a postnuptial agreement is found to be unenforceable. For example, if the parties are serving as parents to minor children at the time of the divorce, a court can find that a child custody arrangement is no longer valid, potentially requiring the development of a new parenting plan while the divorce process is underway. If you and your spouse have years of shared assets and have built a successful business together, an unwinding of the entangled assets can result in years of work becoming unbalanced and unraveled. In the worst case scenario, if it is determined that marital assets should be subject to a 50/50 division because no enforceable agreement exists, then a postnuptial agreement becomes an inconvenient obstacle to the asset division process.
Frequently Asked Questions
Where can I find a lawyer to draft my postnuptial agreement?
Any family law attorney in Washington can help you with the preparation of a postnuptial agreement.
Is there a difference between a postnuptial agreement and a prenuptial agreement?
Yes there is. The main difference is that a prenuptial agreement is signed before marriage whereas a postnuptial agreement is entered into after the date of marriage.
Do I still have rights under Washington law to invest and divide our joint property without a postnuptial agreement?
Yes , even though you may enter into a postnuptial agreement in Washington, the provisions of our state’s community property statutes still control unless the terms of your postnuptial agreement specifically deviate from Washington law.
Is there an advantage to having a postnuptial agreement?
Postnuptial agreements are expressly authorized by our Washington marital dissolution statute. Some advantages include:
Does it matter whether the postnuptial agreement is filed with the court?
No, the filing of a postnuptial agreement with the Washington Superior Court is not required.