When planning your wedding, it’s understandable to want to cut your costs. One way that couples might try to save money is by using a prenuptial agreement template or low-cost flat fee prenup service. The problem with many of these solutions is that they tend to be generic and may be very limited in what they can protect.
What many people don’t realize is that a prenuptial agreement is often only one piece of the puzzle when it comes to financial planning for marriage. In some cases, for prenuptial agreements to be enforceable, they must be accompanied by other agreements, estate planning documents, and financial planning measures.
A prenuptial agreement lawyer in Washington will be able to let you know whether you have all the legal tools in place to make your prenup enforceable. Whether you’ve written a draft prenup using a template service, or are exploring all your legal options, the prenuptial agreement attorneys in Washington at Truce Law can help you craft an enforceable prenup or review your prenup before you sign on the dotted line.
Here are some things to keep in mind before you use a template prenup service.
Prenup Agreement Templates Do Not Provide the Benefits and Protection of Attorney Client Relationships. When enforcing a prenup in Washington, the courts will generally look to see that both parties were each represented by their own attorneys before signing a prenup.
If one or both of you draws up a prenup template and asks the other to sign it, or even if you both write the template together, the court might still find the prenup suspect if you and your partner didn’t have the document reviewed by your family lawyer first. This is because when you sign a prenup, you might be giving up important legal protections under Washington law.
A lawyer can help you understand your rights and help you understand the legal implications of signing a prenup. Before you sign up for low-cost flat fee prenuptial agreement services, you might want to double check to see whether you’ll have an attorney-client relationship with the legal team providing you services, and if so, get clear about who the legal team represents. You and your spouse cannot be represented by the same lawyer.
If the legal team is helping you and your future spouse write your prenup, the team may not have a legal responsibility to represent the interests of either party. In such a situation, either one, or both parties, might need to still hire their own attorneys after writing the prenup to review the document to protect their interests.
Mistakes. For a prenup to be enforceable, it must be fair. A prenup lawyer in Washington can help you understand what kind of distributions of assets would be considered fair by the court. Furthermore, in Washington, when you sign your prenup is just as important as what’s in it. If you bring a template prenup to your partner to sign the day before you get married, you might have a hard time enforcing the prenup later.
A prenup lawyer in Washington understands the steps that need to be taken for a prenup to be enforceable and can help you and your future spouse through the process, every step of the way.
Not Washington-Specific. Many template prenuptial agreements fail to consider state laws. For example, Washington is a community property state. In most instances, property you purchase or assets you acquire during your marriage would be considered marital property. This means that even if a deed is in one person’s name, the property might still be considered shared under state law, unless there’s a sound prenuptial agreement in place.
Disclosure Requirements. Prenuptial agreements have strict disclosure requirements. If you accidentally omit something, your prenuptial agreement might not be enforceable. A lawyer can work closely to help you thoroughly meet disclosure requirements. When you use a template, you’re usually relying on a template questionnaire which may or may not be sufficiently rigorous to provide full disclosure for your given situation.
False Sense of Security. Template prenups might make you feel like you’ve taken steps to protect your assets in the unlikely event of a divorce. If it turns out the template prenup isn’t enforceable, you could find yourself facing unexpected litigation, legal fees, and challenges down the line.
Before choosing a prenuptial agreement template, or low-cost flat fee prenup, you might want to think carefully about why you want a prenup in the first place and consider whether a template prenup or flat fee prenup would protect you if it were to be challenged in your divorce. There are many reasons why couples choose to create a prenup. These include:
Protect Premarital Assets. A couple can list premarital property, assets, and debts, with the intention of protecting separate assets from being classified as community (or marital property) during a divorce.
Protect Income from Creditors. A prenuptial agreement is a legal document that can potentially protect one spouse’s marital income when the other spouse brings significant debts into the marriage.
Retirement Planning. A prenuptial agreement can be used as a tool, along with other types of financial planning, to protect your retirement.
Business Planning. A prenuptial agreement can protect your business interests if you own a business or have a significant stake in a business.
Keep Assets and Debts Separate. A prenuptial agreement can clarify whether you want Washington community property laws to apply to assets and debts you acquire during your marriage. Yet, it’s important to keep in mind that a prenuptial agreement might just be one planning tool you’ll need to use to keep your assets, debts, and income truly separate.
Prevent Divorce Disputes. A prenuptial agreement can clarify how assets would be divided in a divorce.
Estate Planning When You Have Children from a Prior Marriage. A prenuptial agreement can help with estate planning by setting aside certain assets for your children if you have children from a previous marriage.
To Discuss Finances Before You Get Married. Will one partner leave work to care for children? How will you and your spouse achieve your shared and separate financial goals? What is your shared and separate philosophy on debt? The planning process for writing a prenuptial agreement can be an opportunity to have these tough conversations.
Sometimes people go into marriage with unspoken expectations. For example, do you expect your significantly wealthier partner to pay off your debts after you get married? Do you expect your wealthier partner to support you financially? The process of writing your prenuptial agreement can help bring to light expectations and help you and your partner plan.
Address Disparities in Wealth. Sometimes one partner brings in significantly more wealth and income than the other. In other cases, wealth disparities between partners can arise when one partner leaves work to stay home to care for children.
A prenuptial agreement can offer clarity on alimony and how wealth would be divided in situations where there is significant disparity in wealth or where the couple anticipates that one partner will be the higher earner over the course of their marriage.
Pet Custody. In Washington state, pets are considered property. Couples can choose to include provisions in their prenuptial agreement for how they would care for pets in a divorce, including provisions for pet custody, shared pet custody, and more.
Privacy. When couples fight their divorce in court, anything they say can end up on the public record. With a prenuptial agreement, couples can sometimes avoid litigation and the loss of privacy that goes along with it.
To Keep the Peace in the Event of Divorce. No one wants to talk about divorce while planning to get married, but provisions in a prenuptial agreement can help you and your partner keep the peace should divorce end up in your future. Couples can specify how they’ll pay legal fees, and even agree to pursue collaborative divorce, a divorce process that allows couples to agree to negotiate their divorce outside of court.
The issue with prenuptial agreement templates is that they are generic. A template prenuptial agreement also may not include additional financial planning or estate planning that may be required to make the agreement enforceable or to address specific concerns. Let’s look at some case studies that illustrate the limitations of template prenuptial agreements.
If your goal is to protect premarital assets, namely, by keeping premarital assets and debts separate, then you’ll need to list the property and debts you intend to keep separate. A template prenuptial agreement could create a “list it and forget it mindset.” But if you aren’t careful about your financial planning, you could accidentally end up commingling assets you intended to keep separate. When you use collaborative law to create a prenuptial agreement, your Washington prenuptial agreement lawyer can advise you if you need to take additional steps to protect your separate assets and to avoid commingling assets. With the collaborative legal process, you can bring in financial planners and other experts to help as needed.
If your goal is to protect your retirement plan with a prenuptial agreement, you might need to complete additional documentation to keep pension plans and retirement plans separate or may need to consider alternative methods to protect your retirement. For example, in some cases, you may not be able to use a prenuptial agreement to waive certain death benefits. Under ERISA, the Employee Retirement Income Security Act of 1974, you cannot use a prenuptial agreement to waive survivor annuity or lump sum death benefits; additional steps after marriage must be taken through consent forms to make a prenuptial agreement enforceable, and in some cases there are strict deadlines and timelines that must be met. A template prenuptial agreement won’t address these complexities, while a prenuptial agreement attorney in Washington can help you understand the limitations of a prenuptial agreement, while helping you take the additional steps needed to meet your retirement planning goals.
There are certain things you cannot include in a prenuptial agreement, like including a plan for child support, child custody, or visitation. A lawyer can help you understand what you can include in your prenup and what you can’t include. For example, in Washington, an alimony clause would be enforceable, while a child support clause would not be enforceable. Because different states have different rules about what can and cannot be included in a prenuptial agreement, you could be selling yourself short by choosing a template prenuptial agreement that may not consider specific state laws.
If your future spouse has significant debt or child support obligations and you want to protect your income from creditors, you may want to speak to a lawyer when writing your prenup rather than just going with a template prenuptial agreement. Under Washington law, half of community property, assets and income could theoretically be subject to collections. When it comes to protecting assets and income, traceability matters. Creditors might still be able to go after half of community property and income even if a prenuptial agreement is in place. A prenuptial agreement lawyer can help you include clauses that would allow you to seek compensation for assets or income you lost due to creditor claims. Furthermore, if you choose the collaborative legal process to write your prenuptial agreement, you can also hire financial planners who can help you keep your assets and income traceable, thus avoiding some common mistakes couples make when they want to keep income and assets separate.
Couples might look to use a prenuptial agreement to protect separate business interests or to allow each person to make their own personal investments. Yet, without the assistance of a lawyer and without careful financial planning, sometimes business appreciation could be considered community property.
When it comes to debts and purchases, just putting one partner’s name on the credit card or deed, isn’t enough to keep assets and debts separate. A prenuptial agreement lawyer can walk you through how community property works in Washington state and help you draft a prenuptial agreement that meets your goals.
Some aspects of a prenuptial agreement touch upon matters that involve estate planning. For example, if you have children from a prior marriage and want to make sure that certain assets go to your children and not to your future spouse after your death, you may need more than just a prenuptial agreement to make this happen. The family lawyers in Washington at Truce Law are a team of attorneys that include estate planning lawyers as well as prenuptial agreement attorneys. When you work with us, we can put together a team to help you meet your goals.
These are just a few of the situations that a template prenuptial agreement may not be able to adequately address. Many prenuptial agreements include personalized details specific to a couple’s financial or personal situation that a template prenuptial agreement won’t be able to anticipate. A prenuptial agreement attorney, on the other hand, will take the time to understand your goals, and your situation, and craft a personalized prenuptial agreement that’s right for you.
Yet, there are other issues that can arise when couples choose a template prenuptial agreement.
The Risk of the Unenforceable Prenup
Going with a template prenup service puts you at risk of having your prenuptial agreement successfully challenged in court. There are situations where the court may find a prenuptial agreement unenforceable. For example, if both parties weren’t represented by their own attorneys before signing the prenuptial agreement, the court might find the prenuptial agreement unenforceable. A template prenuptial agreement isn’t a replacement for sound legal representation or advice.
To be enforceable, a prenuptial agreement must also be fair. The courts won’t likely enforce a prenuptial agreement where one spouse keeps everything while the other ends up poor or with very little. If you went online and created a template prenup a few days before you were married, the court might also find the prenup suspect. You must give your partner time to review the documents and eliminate any appearance that the prenup was signed under duress.
Future Litigation Costs
If your prenup turns out to have flaws, you could end up facing high litigation costs down the line. Or you could find that your prenup doesn’t offer you the protection you thought it did, resulting in losses. What might seem cost-effective today, could cost you thousands or more down the line in litigation or losses if your prenuptial agreement turns out to be unenforceable, or failed to consider specific issues. If you have assets you want to protect, or want to financially plan before you get married, don’t cut corners. Reach out to the prenuptial agreement lawyers in Washington at Truce Law today.
Next Steps
It’s understandable to want to cut costs if you’re planning your wedding, but your prenup is not the place to cut costs.
If you used a template prenup before you were married, it’s not too late. The family lawyers at Truce Law may be able to review your existing prenup and help you craft a postnuptial agreement that meets your goals.
If you have questions about whether a prenup is right for you, or need legal representation to write your prenup, reach out to the Washington prenuptial agreement lawyers at Truce Law today.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.