Prenuptial, Postnuptial, and
Domestic Partnership Agreements

Prenuptial Agreements

A prenuptial agreement is a contract entered into by prospective spouses prior to marriage but in contemplation of marriage.  The agreement secures the property rights of one or both of the prospective spouses.  A prenuptial agreement clarifies and defines the property interests of the parties, both as to existing property and that acquired subsequent to marriage.  Many times, by having a prenuptial agreement it prevents misunderstandings and resultant disputes.  Generally, in order for a prenuptial agreement to be valid, the agreement must provide a fair and reasonable provision for the party not seeking the enforcement.  There must be full disclosure of assets and debts of the parties.  Each party must be represented by his or her own attorney.  The parties must also enter into the agreement freely and voluntarily on independent advice of an attorney and with full knowledge of their respective rights.

 
Postnuptial agreements

A post-nuptial agreement (sometimes referred to as a “Property Status Agreement”) is a contract entered into by spouses during the marriage.  The agreement secures the property rights of one or both of the spouses.  A post-nuptial agreement clarifies and defines the property interests of the parties, both as to property brought into the marriage and property acquired subsequent to marriage.  Many times, by having a post-nuptial agreement it prevents misunderstandings and resultant disputes.

Generally, in order for a post-nuptial agreement to be valid, the agreement must provide a fair and reasonable provision for the party not seeking the enforcement.  There must be full disclosure of assets and debts of the parties.  The parties must also enter into the agreement freely and voluntarily on independent advice of an attorney and with full knowledge of their respective rights.

The purpose of a postnuptial agreement may be frustrated because of the broad discretion which the courts have in the disposition of property in the event of divorce.  The character of the property, whether separate or community, does not always control the court’s distribution of it upon dissolution of the marriage.  A postnuptial agreement concerning such character would, of course, be persuasive as to the proper disposition of property in the event of dissolution, but like a property settlement agreement made in contemplation of dissolution it may not be binding on the court.

 
Property Status Agreements and Co-Habitation Agreements


Non-Married Opposite Sex Relationship

The law describes a stable marital-like relationship between a non-married man and woman as a “Committed Intimate Relationship” (sometimes referred to as a “meretricious relationship”).  A committed intimate relationship is a stable, marital-like relationship where both parties cohabitate, knowing that they are not lawfully married.  The factors relevant for establishing a committed intimate relationship between two parties include, but are not limited to, the following: (i) continuous cohabitation; (ii) duration of the relationship; (iii) purpose of the relationship; (iv) pooling of resources and services for joint projects; and (v) the intent of the parties.

In general, all property acquired during a committed intimate relationship (except separate property) is presumed to be owned by both parties (“Pseudo Community Property”).  Upon termination of a committed intimate relationship, the court may divide the “Pseudo Community Property” in a just and equitable manner among the parties.  The separate property of the parties is not before the court upon termination of the committed intimate relationship, and therefore is not subject to division.

Same Sex Relationship

The purpose of a cohabitation agreement between same-sex partners is to clarify the ownership of their respective assets to avoid potential disputes that could arise as the result of the application of case law decisions by the Washington courts.

In order for a cohabitation agreement to be valid in Washington, it is important that both parties fully disclose their respective assets and debts to the other.  Additionally, it is imperative that each of the parties is represented by separate counsel.

Currently, Washington law allows two individuals of the same sex in a committed relationship to make a claim against the property of the other person under certain legal equitable theories.  The factors relevant for establishing a relationship between two parties that could create property interests include, but are not limited to, the following: (i) continuous cohabitation; (ii) duration of the relationship; (iii) purpose of the relationship; (iv) pooling of resources and services for joint projects; and (v) the intent of the parties.

A Washington court could determine that all property acquired during the relationship (except separate property) to be owned by both parties.  Upon termination of a relationship, the court may divide the property in a just and equitable manner among the parties.  The separate property of the parties is not before the court upon termination of the relationship, and therefore is not subject to division.


The Law Office of Gary E. Gill, P.S. provides the following services in the area of Prenuptial, Postnuptial, and Domestic Partnership Agreements
  • Advise clients on property rights in the context of marriage
  • Prepare prenuptial agreements
  • Prepare property status agreements (postnuptial) between spouses
  • Advise unmarried couples regarding property rights
  • Prepare property status agreements for unmarried couples
  • Advise clients in same-sex relationships regarding property rights
  • Prepare property status agreements for same-sex couples

 

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Telephone: 206.621.1600

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