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Cake, Dress, Prenuptial Agreement: Wedding Must-Haves in 2011

As a divorce attorney, I am often surprised by the lack of prenuptial agreements among my clients. This is easy to understand; it is certainly not romantic to negotiate the terms of the demise of your marriage before walking down the aisle. With divorce rates nearing 50%, drafting a prenuptial agreement should be on the wedding "to do" list along with choosing a dress and ordering the cake.

It is fascinating to read the news and tabloids concerning the use of prenuptial agreements by celebrities. Camille Grammer, who recently established herself on "The Real Housewife's of Beverly Hills," did not have a prenuptial agreement with Kelsey Grammer, despite the fact that they married only 13 years ago. Without a prenuptial agreement, she received 50% of his estimated $100 million estate under California law in their recent divorce. Given that Kelsey created a great deal of his wealth prior to his marriage to Camille, it is hard to believe that he did not insist upon a prenuptial agreement. According to the Daily Mail, Kelsey has not learned his lesson; he did not sign a prenuptial agreement prior to his fourth wedding to Kayte Walsh in February, 2011.

Many prenuptial agreements have provisions that must be carefully followed during the marriage. In the prenuptial agreement between Charlie Sheen and Brooke Mueller, reported to be over 60 pages long, Brooke apparently received an "anniversary payment" of $300,000 each year for simply staying married to Charlie. This is a payment that must be made to show that the parties adhered to the negotiated terms of the agreement in practice. According to Gawker, the two signed away rights to the earnings of the other, protecting Charlie's "Two and a Half Men" earnings. Now that their marriage is over, Charlie must be relieved that at least the terms of his divorce were easily finalized.

Specific terms incorporated in the prenuptial agreement may impact its enforceability and need to be carefully considered. As published by Radaronline.com, Sandra Bullock's prenuptial agreement with Jesse James contained a provision that he would receive nothing if he cheated during the marriage. While this is a common provision added by parties, it may not always be prudent. Given that Jesse James strayed, this worked out for Sandra, however provisions concerning cheating, weight gain, and more outlandish requirements may not be enforceable.

In Washington State, those who make the prudent decision to enter into a prenuptial agreement must proceed carefully. While prenuptial agreements may be enforced if substantially fair when executed, or entered into in a procedurally fair manner and followed during the marriage, there are careful steps that should be followed in the drafting and negotiation phase.

In Washington, prenuptial agreements are generally upheld and enforced unless they are economically unfair or achieved by unfair means. Friedlander v. Friedlander, 80 Wn.2d 293, 301, 494 P.2d 208 (1972); Marriage of Foran, 67 Wash. App. 242, 255, 834 P.2d 1081 (1992). Courts may apply a two-pronged analysis to determine the enforceability of a prenuptial agreement. The first prong requires examination of whether the agreement was substantively fair at the time it was executed. The second prong requires examination of whether the agreement is procedurally fair; i.e., whether the circumstances under which the agreement was made were fair. In re Marriage of Matson, 107 Wn2d 479, 482-3, 730 P.2d 688 (1986); Marriage of Foran, supra, at 259-60.

If the court finds that the prenuptial agreement was fair and reasonable at the time of execution to the party not seeking its enforcement, the agreement will be found to be valid. No further analysis is necessary and the agreement will be enforced. See Whitney v. Seattle-First Nat'l. Bank, 90 Wn.2d 105, 579 P.2d 937 (1978) (post-nuptial agreement providing for spouse enforced); In re Marriage of Fox, 58 Wash. App. 935, 938, 795 P.2d 1170 (1990) (restating the test).

The second prong of the analysis involves a two-part test: First, did the parties make a full disclosure of the amount, character and value of the property held at the time of the agreement, and second, did the parties enter into the agreement voluntarily, with independent advice, and full knowledge of their rights. If both questions are answered in the affirmative, the agreement is enforced regardless of its substantive fairness. In re Marriage of Matson, supra, at 483. Essentially, each party should be represented by counsel, all assets and liabilities must be disclosed, and the prenuptial agreement should be fairly negotiated in advance of the wedding date.

The specific terms of the prenuptial agreement must be something that you can actually live with and follow during your marriage. Courts look to the parties' actions during the marriage to determine whether they rescinded their contract by their conduct. Fox, 58 Wash. App. 935, at 938 (where neither party observed the terms of their contract during 11-year marriage, community and separate funds were knowingly comingled, the contract was held to have been rescinded).

In summary, although it may not be romantic, a prenuptial agreement is actually a tool that may prove useful in the future. If you are entering into a second or third marriage, have children, or considerable separate assets, I encourage you to call a Seattle divorce attorney four to six months in advance of your wedding date.

Lasher Holzapfel Sperry & Ebberson is uniquely equipped to draft prenuptial agreements, utilizing the expertise of Seattle divorce attorneys, Seattle estate planning attorneys, and Seattle tax attorneys to protect your interests.