It is always best to begin negotiation and discussion of a prenuptial agreement well before the day of the marriage. A prenuptial agreement sprung onto one party, by another, in a short amount of time, prior to the marriage, is likely to be seen as procedurally unfair. WA case law does not specify a specific amount of time that will be deemed to be fair. Instead, it is generally a case by case analysis. The amount of time will likely depend on the facts between the parties, and the purpose and intent behind the prenuptial agreement. Consult an attorney early, and ask about the appropriate time frame for your agreement.
Obtain Independent Attorneys
Each party should hire and pay for their own attorney for negotiation of a prenuptial agreement. It is likely that one party's attorney may draft the prenuptial agreement, but each party should provide input and be allowed to negotiate. If each party has an attorney, it is more likely to show the court that the party entered the prenuptial agreement with full understanding as to the legal effect of the agreement. As a practical matter, each person can have their attorney sign an affidavit indicating that the attorney discussed and informed the party of the significance of the provisions in the prenuptial agreement.
Include a Statement of the Procedure Followed in the Agreement
In the actual agreement, parties can state the procedure that they actually followed in drafting, negotiating, and executing the agreement in order to show procedural fairness. For example, include the timeline for which discussion and negotiation began. If you include a statement of procedure, make sure you actually followed the procedure stated.
Allow For Time After Initial Drafting for Negotiation
As a matter of practice, after discussion of the terms of a prenuptial agreement, it is likely that one party's attorney will draft the prenuptial agreement. After drafting, it is important to present the draft to the other party and to his/her attorney with plenty of time for that other party to have time to negotiate any provisions that the receiving party does not agree with.
Have Signatures Notarized
Once the agreement includes the agreed provisions by both parties, it is desirable to have the signatures notarized. A notarized signature tends to show that the party signed and entered the agreement voluntarily.
Prenuptial Agreements Are Complicated
Prenuptial Agreements are a complicated area of law. No attorney can guarantee enforcement of a prenuptial agreement. This is merely a general guide of procedure to follow that may help in supporting an argument for enforcement. It is always best to see an attorney to discuss specific issues of substance and procedure.
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