Have you ever wondered what happens if you do not sign a prenuptial agreement before the wedding but still want to set clear financial boundaries in your marriage?
Sometimes, negotiations about finances and property cannot be finalized before the big day. In California, for example, the law requires at least seven days between the final draft of a prenuptial agreement and the signing. Washington does not have this rule, but many couples simply find the pre-wedding timing too stressful. In these cases, a postnuptial agreement, which is an agreement signed after the wedding, can be a solution.
Why Couples Choose Postnuptial Agreements
A postnuptial agreement may be used for several reasons:
- To finish negotiations that could not be wrapped up before the wedding.
- To revisit terms once the pressure of the wedding has passed.
- As part of broader estate planning, particularly when protecting assets for children of a prior marriage.
- To shield property from creditors in the event one spouse takes on business or personal liabilities.
Standards in Washington
In Washington, as with prenuptial agreements, courts look at both procedural fairness (was the process fair, with separate counsel and no coercion?) and substantive fairness (is the agreement fair when signed?). Washington courts require spouses to deal with each other as fiduciaries, both owing good faith, fair dealing, and disclosure of all material facts.
Best Practices for Postnups
The strongest agreements include:
- Full disclosure of all assets and liabilities.
- Independent legal counsel for each spouse.
- Careful drafting that avoids ambiguity or conflicting documents.
A Cautionary Tale: The McCourt Case
Consider the high-profile case of Frank and Jamie McCourt, former owners of the Los Angeles Dodgers. Their postnuptial agreements contained conflicting terms about ownership of the team, leading to years of litigation and ultimately being declared void. This case underscores how poorly drafted postnups, or agreements without clear disclosure, can collapse under scrutiny.
Beware of Online Forms
Finally, clients should be cautious about using postnuptial agreement forms found on the internet. Most fail to include the full disclosure requirements or the expectation of separate counsel—making them vulnerable to being thrown out in court.
Bottom Line
A well-drafted postnuptial agreement can provide clarity, protection, and peace of mind. But to withstand scrutiny in Washington, it requires transparency, fairness, and skilled legal counsel for both parties.
