Saying I do (or I don’t) to a prenuptial agreement: the basics

Saying I do (or I don’t) to a prenuptial agreement: the basics

There is an old saying that goes, “Everybody needs a prenup!”

Many would agree to this wise adage, said in 2011 by relationship “expert” Khloe Kardashian. Even an actual expert agrees. A well-drafted prenuptial agreement can indeed make a couple want to stay married for much longer. It can be a form of insurance or an investment in a couple’s marriage.

If you’ve been reading our blog, you’d have encountered Latin and legalese and that oft-repeated term “prenup” quite often. Simply put, a prenuptial agreement defines the terms under which marital assets will be divided should the couple divorce or one of them dies. If you wandered into this blog because you’re in need of a family law attorney in the Evergreen State whom you can ask about prenup, you’re in luck — we’re fluent in the unsexy language of prenup.

But before you pick up the phone, we present to you a prenup guide that you may or may not find useful (it’s highly likely that you won’t), using our favorite people to ever get a prenup: celebrities.

Who should get a prenup?


Rich spouse, poor spouse

There are many different scenarios where a couple is an ideal candidate for a prenup, such as when one spouse is much, much wealthier than the other. People whose wealth is equivalent to the GDP of a developing country should definitely consider getting a prenup. That’s people like Jeff Bezos and former wife Mackenzie Bezos who got divorced in Washington state and had to divide assets amounting to $157 billion. But they’re not the only ideal candidates for a prenup.

Related reading: Primed for separation: Things we learned from the Bezoses’ finalized divorce

If you’ve already set your mind on getting one, preferably you get one that’s “airtight” like in that very realistic, fully realized depiction of divorce and prenuptial agreements, Intolerable Cruelty.

Just kidding. We do NOT recommend looking to that film for insight on the dissolution of marriage. As family law attorneys, we have a beef with its inaccuracies. Films like it is why prenup has obtained a bad rap. And more often than not, it’s always the woman who’s portrayed as the gold-digger — from Breakfast at Tiffany’s to Crazy Rich Asians (except the one doing all the digging is the mother of the crazy rich, crazy handsome bachelor).

Stay away from divorce movies and call a lawyer.

For richer or for poorer, for the second time

Another scenario where a prenup is a good idea is when one or both of the partners have been married before and already have children. And that’s not because they’ve become so well-versed with family law that they’d easily breeze through a prenup draft.

Here’s a little secret: despite having handled clients’ prenups and dissolutions of marriage in our Renton offices, we sometimes suspect that our years of lawyering pale in comparison to what someone like Janet Jackson has — she’s had at least three prenups in her lifetime. Color us insecure.

Related article: Janet Jackson might have more experiences with divorces and prenups than we do

In any case, getting a prenup on a second marriage can definitely do a ton of good. For one, it enables a couple to better plan how they might support their existing and future children financially. And if either spouse has a family business or any intellectual property that they want protected, a second-marriage prenup can help smoothen matters.

Related article: Settling and valuing intellectual property assets: Things you can “learn” from celebrity couples

Essential components of a prenuptial agreement


No one decides to get married thinking that one day, it will be over. That is, unless the person deciding to get married is any of these marriage-happy celebs.

We’ve drawn up many prenuptial agreement drafts for our Renton clients over the years, but we’ve also handled clients that felt coy about discussing premarital finances and assets. Here are some of the most common concerns we’ve been told:

“Should I ask for a prenup even though I’m not rich?”
It can be tough to have a conversation about getting a prenup, but someone has to do it. Yes, even the partner that earns less and has fewer assets.

We urge you not to look into Hollywood for reference as to what signing a prenup involves. We especially would encourage you not to refer to the aforementioned George Clooney-Catherine Zeta-Jones movie, which talks about an “airtight prenup.” It’s a fantasy. The fact is that a prenuptial agreement in Washington doesn’t just stipulate what happens when the marriage ends, but also how finances are dealt with while in the marriage.

Related article: “Prenups are for wealthy couples only” and other myths you shouldn’t believe

“How does signing a prenup affect my marriage?”
How signing a prenup will affect your marriage is a completely valid concern. But that was not a concern that Nicole Kidman shared before she married country crooner Keith Urban. See, when she married him, she got her lawyers to work. She didn’t hesitate to put in a no-drinking clause for her then soon-to-be hubby. Per Ms. Kidman’s prenup, Keith gets $600,000 every year that he stays clean and sober, and that consequently, he doesn’t get a penny if he uses illegal narcotics or engages in a drinking behavior that will make Betty Ford blush.

“How will my fiance feel if I talk about prenup?”
Even if you aren’t Britney Spears, whose battalion of lawyers have kept her riches mostly untouched by a failed marriage thanks to a so-called “airtight prenup,” this concern is totally valid and understandable. Talking money with your honey isn’t sweet.

Look at it this way: even when Britney and her now-ex got engaged in a whirlwind and decided immediately to get married, the Spears attorneys swooped in just in time to prevent a marriage from doing damage to Ms. Spears’ riches. Granted, not every couple’s wealth disparity is as wide as the former couple’s.

The bottom line is that feelings may get hurt if either spouse brings up the subject of prenup, but feelings will also get hurt if the marriage ends up in divorce and there’s no piece of paper protecting the assets of either partner.

“I don’t want his/her money”
It’s a touching sentiment, but not a sound one. You wouldn’t want to be less financially secure should you end up divorcing your spouse. And perhaps, you wouldn’t want your family getting entangled in some legal troubles should either of you die.

Look no further than the case of Jim Morrison. When the legendary vocalist of The Doors passed away, he had sizable assets and owned 25% interest in The Doors (that’s a truckload of money, FYI). He was a legend with a poorly drafted will and an unsatisfactory prenup with his common law wife Jennifer Courson. Long story short, he left his entire estate to Ms. Courson, who died shortly thereafter. This left Mr. Morrison’s beneficiaries — his brother, sister, and parents with whom he was estranged — with a plainly drafted will that only made things more complicated when he passed on.

A good prenup must clearly include stipulations as to what will happen if the couple divorces, what conditions during the marriage should be met, and what will happen upon the death of one of the spouses.

Consequences of not signing a prenuptial agreement

Suppose you or your spouse decides not to get a prenup. In some cases, that's all right because there are certain couples who may not need one. But if you happen to be the perfect candidate for a prenup AND you choose not to sign one, there will be consequences.

You lose a lot of money

If Madonna had thought of signing a prenup before marrying Guy Richie, she wouldn’t have had to bequeath a significant amount of her Like A Virgin money to Guy Ritchie when they divorced. If Mariah Carey had had a chat with her divorce attorneys first before allowing Nick Cannon to sweep her off her feet, she wouldn’t have had to say bye-bye to a small chunk of her millions.

You lose the ability to protect certain assets

Washington state is a community property state. Contrary to popular belief, that does NOT mean that all marital assets and debt accumulated during the marriage — the house, car/s, credit card debts, and loans — will be divided in half. Without a family law attorney, the division of a married couple's properties will be determined by state laws. That’s what will happen if you did not have an attorney oversee your assets before tying the knot.

Is there any reason not to sign a prenup?

Certain couples may not need a prenup. If neither you nor your fiance have significant marital assets, a prenup may not be as effective or as useful. However, you would still be well-served consulting a matrimonial lawyer who can determine whether you or your spouse have assets significant enough to be divided in the event of a divorce.

Related article: 12 Tips on divorce from unwitting gurus: celebrity divorcees

Can a prenuptial agreement be terminated or perfect?

Everyone in your life — from your family and friends to the relationship blogger you’re subscribed to — will have an opinion about whether you should get a prenup. What they may not have an opinion on is whether you should terminate or amend your prenup. In Washington, you can change or cancel a prenuptial agreement. If Beyoncé can do it, so can you.

Queen B amended her prenuptial agreement for her marriage with her equally rich beloved Jay-Z. With a combined net worth of over $1 billion, that was the perfectly sane thing to do. In 2016, the Carters reportedly updated their relationship agreement in accordance with the changing circumstances around their professional and married lives.

Bey’s $5-million-per-child provision in her prenup is well-known, but the increase in both her and Jay-Z’s net worth as well as changing family dynamics (i.e., more kids, more family drama) seem to have compelled them to get in touch with their respective matrimonial lawyers to arrange a postnup agreement outlining issues on child custody, splitting assets, and creating a trust fund for the little Carters.

You and your spouse don’t have to be as rich as Beyoncé to amend a prenup or apply for a postnup agreement. And remember, even if Beyoncé’s songwriting has netted her millions of dollars in royalties, the terms of her postnuptial agreement had to be written by her counsel. Amendments to a prenuptial agreement have to be written by lawyers because they know way more legal verbiage than Beyonce ever will.

Other questions related to prenuptial agreements you might be afraid to ask

“What if I want a prenup but my fiance doesn’t?”
Not everyone will agree to sign one on principle. One of those people is pop star/actress/reality TV star/Daisy Dukes-wearer Jessica Simpson who refused to sign one, once upon a time. She thought she was going to spend the rest of her life with her former spouse, former boy band member Nick Lachey. When they split in 2005, a significant amount of her millions made off of her then flourishing entertainment career went to Nick. She went on record saying she wished she had signed a prenup — exactly what her ex-husband urged her to do before they tied the knot.

“Will a prenup affect our marriage if we don’t divorce?”
No. If you don’t get divorced, your prenup will be just a piece of paper tucked away in your safe, never to be seen again. However, if you did sign a prenup but there had been conflict involving that very piece of paper, the resentment that might grow because of that might cause some marital strife later on.

“Could not signing a prenup be a deal breaker?”
Prenups are thought to be unsexy and unromantic, and are more commonly thought of as the splitting of assets when a couple get divorced. A prenup certainly does that, but it’s also very much a means to protect both of your assets, protect your children (if you have any), and so much more. If your fiance refuses to sign one or gets offended that you even thought to ask, well, we’re no matchmakers but you and your fiance may have differing values. You’re already fighting over money before the union. And though money and property aren’t everything, they are something. Specifically, something you might wish you had protected prior to getting married.

Little-known facts about prenuptial agreement in Washington state

If none of the previous information on prenuptial agreements addressed most of your questions and concerns, these little-known facts about prenups in the Evergreen State might.

“Is it acceptable to use generic prenup templates?”
Perhaps you’ve thought about using generic prenup templates that can be downloaded online and you can fill in by yourself. If you’re thinking of doing that because you’re curious what a prenup form looks like, then you’re on the right track. You’re doing fine, unlike Paul McCartney, James Cameron, Michael Jordan, and other multimillionaires who probably didn't have any interest in what a prenup looked like, and then got divorced without a prenup.

That said, generic templates aren’t the best way to go. No two couples are alike, so a generic template won’t suffice for your marriage. It may seem like an inspired idea to download a generic prenup form in Washington to save on costs, but courts will scrutinize a prenup and one that’s sloppily drafted will likely be unenforceable.

And don’t draft one from scratch by yourself. Like any legal document, a prenup is notoriously tricky to write especially if you’re not a lawyer. Details need to be precise, the contract formatted a certain way, and should read as if family law attorneys went over it with a fine-tooth comb.

“Does a prenup have an expiration date?”
If you’re hesitating to sign a prenup because you’re concerned that the terms contained therein will cast an ugly shadow over your marriage, worry not. You can put an expiration date on your prenup in Washington however you wish. A sunset clause stipulates the end of your prenup after a certain number of years of marriage, which could be anywhere from five to 25 years (or more).

A-list celebrity divorcees like Tom Cruise have done it to protect their massive wealth. In a majority of cases, it is indeed a smart way to protect one’s millions. Other times, not so much, as in the case of General Electric CEO Jack Welch whose prenup for his marriage to ex-wife Jane Beasley had a 10-year sunset clause. The former Mrs. Welch separated from her husband after 10 years of marriage, and we’re almost certain her intentions were pure and had nothing to do with her walking away with $150 million in hand after the split.

“Can a prenup determine child custody and child support terms?”
It may seem like a good idea to preempt parenting and visitation rights issues following a divorce. In Washington state, a prenup can not determine child custody and support terms. Washington family courts will take into account the spouses’ financial situation based on state guidelines and are the final authority in deciding who gets custody based on the best interests of the child.

On the other hand, a prenup may, at times, be allowed to determine the terms of spousal support, including the type, amount, and duration of the alimony.

Got other questions about getting a prenuptial agreement in Washington? Seattle family law attorneys Buckingham, LaGrandeur, & Williams have many years of experience talking about the thoroughly meticulous topics of prenup and divorce in the Evergreen State. Leave the unsexy talk to us — schedule a consultation or call us at 425-448-6419.There is an old saying that goes, “Everybody needs a prenup!”