THE PRENUP BASICS: FAIRNESS & FULL DISCLOSURE
I have increasingly been asked about prenuptial agreements. Maybe it is the warm weather (unless you live in western Washington), the fear of the unknown, a prior divorce, or just a way to protect oneself in the unfortunate event things don’t work out.
As with almost any contract between parties, a prenuptial agreement must be negotiated in good faith. Washington State specifically imposes a duty of good faith between the parties by statute, and places the burden of proof on the party asserting good faith to prove it in the event of a challenge. RCW 26.16.210
With a duty of good faith comes an element of fairness. A prenuptial agreement may be unenforceable if the agreement is unfair. If the agreement is fair on its face, it will stand absent other legal challenges (e.g., lack of capacity to contract). If the agreement is deemed unfair, it may still be valid provided, at the time of its creation, there was full disclosure of the property, including its value, character, amount and each party had independent legal counsel and he or she was fully advised of her legal rights.
In short, a valid prenuptial agreement must be negotiated in good faith and fair. Both parties must fully disclose his or her assets and liabilities, and have independent legal representation. To a happy, loved filled marriage.