Blog

Prenuptial Agreement

Prenuptial Agreement in Washington State

A prenuptial agreement (also referred to as a premarital or antenuptial agreement) is a contract entered into by prospective spouses prior to marriage.  The marriage has to be contemplated.  From the agreement, the property rights of one or both of the prospective spouses are determined or are secured to one or both of them or to their children.  In re Estate of Crawford; Friedlander v. Friedlander.

Parties to a prenuptial agreement must exercise the highest degree of good faith, candor and sincerity in all matters bearing on the proposed agreement.   Prenuptial agreements are contracts that detract from the law would otherwise provide;  and for that reason they are very closely scrutinized.  The courts insist on either a fair and reasonable contract or procedural fairness.

In Washington State, there is no statutory authority for prenuptial agreements although there is a statutory basis for married persons to enter into separation contracts.  RCW 26.09.070.  There is a statute allowing married persons to enter into an agreement regarding the status and disposition of community property.  RCW 26.16.120.  There is also statutory authorization for married couples to convert community interest in real estate to one spouse, thus converting it to separate property.  RCW 26.16.050.

Validity of the Prenuptial Agreement

Case law establishes the test for the validity of prenuptial agreements.  There is a two-prong analysis for evaluating the validity of such contracts.

(1)        Is the agreement fair?  Does it provide a fair and reasonable provision for the party not seeking enforcement of the agreement.

If the court makes this finding, then the analysis ends and the agreement may be enforced.  If the agreement is fair and reasonable and if no fraud or overreaching is shown, then there is no need to advance to the second prong of the analysis.  If the agreement is not fair, then the court must proceed to the second prong which includes two tests.

(2)        Full disclosure and voluntary with full knowledge of rights.  First, was full disclosure made by the parties of the amount, character and value of the property involved, and, second, was the agreement entered into voluntarily through independent advice and with full knowledge by the spouses of their rights?

The burden of proving the prerequisites for a valid agreement is on the party asserting the agreement.

In analyzing prong two, some of the common factors that have been considered to determine if an agreement is valid include the following:

u         the bargaining positions of the parties;

u         the sophistication of the parties;

u         the presence of independent legal advice;

u         the party’s understanding of the legal consequences and rights;

u         the timing of the agreement juxtaposed with the wedding date;

u         whether there was complete disclosure of the value of the property involved;

u         all circumstances leading to the execution of the agreement.

Full Financial Disclosure

Under prong two, the cases clearly require full financial disclosure.  The disclosure of value need not be exact and appraisals may not be required, but case law does not indicate how value must be disclosed.  The bases of the valuation should be disclosed, be it by tax assessment, book value, estimate by the parties, purchase price, stock market closing figure, real estate opinion or appraisal.

Independent Counsel

Although the existence of independent legal counsel is not absolutely required, it is a very important factor in considering whether the party entered the agreement intelligently.  Voluntariness is not sufficient; the signing of the contract must also have been “intelligent”, i.e., with an understanding of the legal consequences of the contract. The Supreme Court held there was no absolute requirement of independent counsel in a case where an agreement was found to be fair and reasonable, but in that case, where the agreement was patently unreasonable, “independent counsel was required.”

Agreements which purport to terminate future child support are invalid as they contravene public policy.  I

In Washington, the court may refuse to enforce a prenuptial agreement that the parties themselves have not observed during the marriage.  It also held that the burden is upon the spouse seeking to enforce the agreement to show it has been strictly observed.

 

 

 

 

Filing for Divorce in Washington State

Washington Divorce Laws

Jurisdiction of the Court

Filling for divorce in Washington State requires jurisdiction of the court on one of the parties. Not all of the issues in a dissolution, separation or declaration of invalidity action need be addressed in one action.  This is referred to as “divisible divorce”.  The court may have jurisdiction to affect the status of the marriage (such as grant a decree of dissolution) without having jurisdiction to divide property, order maintenance or child support or decide the residential placement of a child or decide on a parenting plan.

In a family law case, jurisdiction should be considered in light of the issue being litigated.  The following questions should be asked:

(1)        Does the court have jurisdiction to dissolve the marriage or otherwise affect the status of the marriage?

(2)        If it does, does it also have jurisdiction to divide the property, to award spousal maintenance or child support?

(3)        Does the court have jurisdiction to decide the residential placement (custody) of children?

The first question depends on this state’s nexus with the marriage.  The second question depends on whether there is personal jurisdiction over the parties.  The third question depends generally on the child’s connection with the state.

Jurisdiction to Affect the Status of the Marriage

In personam (personal) jurisdiction over both spouses is not necessary in a dissolution action involving only the status of the marriage.  A decree changing the marital status of a couple is viewed as an action in rem (property, thing, status).  A Washington trial court has jurisdiction to affect the status of the marriage, by dissolving a marriage, if one of the spouses is domiciled in Washington or is in the armed forces and is stationed in Washington.  Domicile is residence in fact, or physical presence and the present intent to make a place one’s home.  RCW 26.09.030, .040. If the petitioner is a service person stationed in Washington, he or she must be in Washington for the entire 90-day waiting period or the court will be without jurisdiction to grant a dissolution. Notice to the non-resident spouse would still be required.

Jurisdiction to Distribute Property and Order Support

To divide property or to order maintenance or child support, the court must have in personam (personal) jurisdiction over the affected person. Residency of one party, without more, is insufficient to give the court personal jurisdiction to dispose of property under RCW 26.09.080. Personal jurisdiction required over absent parent in support proceedings    .

If both spouses are domiciled in Washington, then the court will have jurisdiction to decide property and support issues.  If, however, one party does not reside in Washington, there may still be in personam jurisdiction under the Washington long-arm statute, RCW 4.28.185.  The facts that may establish in personam jurisdiction over the respondent are:

¨                                   the parties lived in Washington during their marriage and the petitioner continues to reside here or is a member of the armed services stationed in this state,

¨                                   the parties may have conceived a child while within Washington, or

¨                                   the respondent committed a tortious act within Washington.

The cause of action must arise from the doing of one of the enumerated acts.  RCW 4.28.185 (the long-arm statute).

Therefore, under RCW 4.28.185(1)(f), a Washington trial court will have jurisdiction to divide property (pursuant to RCW 26.09.080) where the petitioning party has continued to reside in this state (or has continued to be a member of the armed forces stationed in this state) if the respondent has lived “in a marital relationship within this state notwithstanding subsequent departure from this state.”  Additionally, under the long-arm statute, even if one spouse has never lived in Washington, there is jurisdiction to dispose of real or personal property situated in Washington.  RCW 4.28.185(1)(c).

The commission of the tortious act of nonsupport of children in Washington may permit the extension of in personam jurisdiction under the long-arm statute over an out-of-state parent in some cases.   However, the long-arm statute will provide jurisdiction in such a case only when the non-resident spouse also has “minimum contacts” with Washington.

When a Washington court has jurisdiction, it may order a party to convey out-of-state real estate or property.  However, the court of one state may not change the title of the real estate of another state by way of direct decree.  The court may order one spouse to convey the out-of-state realty to the other spouse and enforce that decree with its contempt powers.

Actions authorized by RCW 26.09 are commenced by filing a petition or by service of a summons and petition on the respondent. No summons is necessary if both spouses sign a joint petition or if the respondent files a written joinder in the proceeding.

If there is a basis for in personam jurisdiction under the long-arm statute, personal service outside of the state may be allowed under RCW 4.28.180.  Service by publication may be allowed under certain circumstances under RCW 4.28.100.

If the long-arm statute provides a basis for jurisdiction over an out-of-state spouse, then personal service of summons and petition may be made outside of the state.  A party served outside of the state has 60 days (instead of 20) to answer. Personal service outside of the state is valid only when an affidavit is made and filed to the effect that service cannot be made within the state.   The long-arm statute permits extraterritorial service of process (personal service) where a nonresident has had sufficient “contacts” with this state to satisfy due process. Notice, without proper service, is not enough to confer jurisdiction.

Service by publication is allowed in some circumstances.  The requirements are found in RCW 4.28.100.  Publication requirements are strictly construed.  A bare recitation of the statutory factors to support service by publication is insufficient; the facts supporting the legal conclusions must also be included in the affidavit.

A separate action for disposition of property or liabilities, maintenance, or support may be brought after a decree of dissolution has been entered if the court granting the dissolution did not have in personam jurisdiction over the absent spouse at the time of the decree.  RCW 26.09.060.

Jurisdiction to Decide Parenting Plans   

Residential placement (“custody”) issues must be determined in accord with the subject matter jurisdiction requirements of the Uniform Child Custody Jurisdiction Act, RCW 26.27, and the Parental Kidnaping Prevention Act, 18 U.S.C. § 1738A.

Abatement of Dissolution

Generally, when one party dies, a dissolution action abates.  However, the jurisdiction of the court does not necessarily cease for all purposes.

Third Parties in Dissolution

The trial court may not determine the rights of third parties who are not before the court in a dissolution action.

Default Judgments

Before a default judgment can be entered, the petitioner must file with the court proof that proper service was made on the respondent.

If personal service was made in this state, the order of default may be requested 20 days after service; if personal service was made outside of Washington or by publication, then the order may be requested 60 days after the service or the date of first publication; and if service was by mail, default may be requested 90 days after the date of mailing.

If the respondent has appeared, then notice of default must be given.   Also, if more than one year has elapsed since service was made, and the respondent has not appeared, notice of the motion for default must be given to the respondent.

In entering a default judgment, a court may not grant relief in excess of, or substantially different from, that described in the complaint or petition.  A court has no jurisdiction to grant relief beyond that sought in the petition and to the extent a default judgment exceeds relief requested, that portion of the judgment is void.

Before a default decree can be entered, the petitioner must certify whether the respondent is a member of the military.  Soldiers’ and Sailors’ Civil Relief Act of 1940.  If the respondent is in the military, the court may appoint an attorney to represent the service person if that party does not appear and is not represented.

Temporary Orders

In a proceeding for dissolution, separation, declaration of invalidity or for property disposition following a dissolution, the trial court may issue a temporary restraining order or preliminary injunction restraining or enjoining any person from transferring, removing, encumbering, concealing or in any way disposing of any property except in the usual course of business or for the necessities of life and if so restrained or enjoined, require the person to notify the moving party of any proposed extraordinary expenditures made after the order is issued.  RCW 26.09.060(2)(a).  Such an order may be revoked or modified and it terminates when the final decree is entered or when the petition for dissolution, separation, or declaration of invalidity is dismissed.  RCW 26.09.060(9)(b), (c).  However, delinquent support payments accrued under a temporary order are not extinguished when the final decree is entered, unless the decree specifically states they are extinguished.  RCW 26.09.060(10).

The trial court may give one spouse exclusive possession of the family home during the pendency of a dissolution action and the value of the occupancy may play a role in the other temporary decisions of the court concerning issues of child support, maintenance and allocation of debt payments.

The trial court may also issue a preliminary injunction which enjoins a party from changing the beneficiary of any insurance polices.  The change of a beneficiary contrary to such an order can be voided.  The trial court has the power to order a return to the status quo or to treat a transaction as invalid where an injunction has been violated.  The death of one of the spouses while a dissolution is pending does not prevent a court from exercising that power.

Division of Property in Washington State Divorce

Division of Property in Washington State Divorce

How to Distribute Property

            Absent a valid agreement of the parties on the division of property, the trial court must make a series of determinations.  In determining the division of property in Washington State divorce, the court must first decide whether a claimed interest is “property” (as opposed to a mere “expectancy”). The court must then characterize all property as either separate or community property.  The court must then value the property.

In the case of large and complicated assets such as businesses, professional goodwill, real estate and pensions, expert opinion will ordinarily be necessary.  Then the court must distribute all of the property before it with both the character of the property and all other relevant factors (see discussion of factors below) in mind to achieve a “just and equitable” division.

In finality, property is not merely distributed along the lines of whether it is separate or community.  For example, a spouse with a considerably larger separate property may receive all of that property, however, the disadvantaged spouse then may get a larger share of the community property to balance it all out. The court should make the decision regarding the distribution of property with any award of maintenance in mind.

Debt should also be characterized as separate or community.  However, as with the division of property, the court may distribute separate or community debt to either spouse.

Contracts Between the Spouses

Spouses may by contractual agreement change their separate property into community or their community property into separate property.  Some evidence in writing of the mutual intention of the parties to change the character has been required.  RCW 26.16.050, .120.   However, oral agreements may be sufficient in particular circumstances.

            Separation Contracts

RCW 26.09.070 provides that the spouses, in order to promote amicable settlement of disputes at separation or upon filing for dissolution, may enter into a written separation contract providing for the maintenance of either spouse, the disposition of any property owned by both or either of them, and the parenting plan and support for their children and for the release of each from all obligation except that expressed in the contract.  A separation contract (except for portions involving a parenting plan for children) is binding on the court unless the court finds, after considering the economic circumstances of the parties and any other relevant evidence, that the contract was unfair at the time of its execution.  RCW 26.09.070(3).  Division of property in Washington State divorce is a common way of settling a very thorny issue without litigation.

Any child support provided for in the contract shall be reviewed by the trial court for compliance with RCW 26.19.020, the Child Support Economic Tables.  RCW 26.09.070(3).  Any agreement between spouses waiving child support payments is not binding because it would violate the public policy of concern for children’s welfare. However, an agreement to accept a lump-sum payment in lieu of periodic future child support is not against public policy.  Babbitt v. Babbitt, 50 Wn. App. 190, 193, 747 P.2d 507 (1987).

A separation contract may provide that maintenance may not be modified.  In the absence of such an agreement between the spouses, any maintenance award is modifiable and the trial court may not provide otherwise.  In re Marriage of Short, 125 Wn.2d 865, 875-76, 890 P.2d 12 (1995).

In all cases, the parenting plan must be set out in the decree and the parties shall be ordered to comply with its terms.  The remainder of a separation contract shall be set forth in the decree, filed in the action, or made an exhibit and incorporated by reference unless the contract provides to the contrary.  RCW 26.09.070(5).

The terms of a separation contract that are set forth or incorporated in a decree may be enforced by all remedies available for the enforcement of a judgment, including contempt, and are also enforceable as contract terms.  RCW 26.09.070(6).

            Joint Tenancies

Spouses may hold property as joint tenants or tenants in common.  In a joint tenancy, each tenant has total ownership of the asset and at the death of one, the survivor takes the whole property.  A tenancy in common does not have this incident of survivorship.  The Supreme Court has held that a writing signed by the spouses is necessary to create a joint tenancy with community property.  RCW 64.28.040 (all joint tenancy interests held by husband and wife are presumed to be community property).  Either spouse may sever a joint tenancy and, in that case, the property is presumed to be community property whether it is held in the name of the husband or wife or both.  RCW 64.28.040.

            Community Property Agreements

Community property agreements may:  change presently owned separate property to community property; change subsequently acquired separate property to community; change separate property to community property at the time of death; or effect all of these changes.

Community property agreements are particularly favored in Washington law and have been held to control over other inconsistent instruments, unless there is mutual intent to rescind the agreement.

Although community property agreements can only be “altered or amended” in the same manner as they are created (which is provided for in RCW 26.16.120), their complete recision or abandonment is not governed by this statute.

Community property agreements are treated as contracts, and the general rules on contract rescission apply.  Mutual intent to rescind such an agreement must be demonstrated; unilateral acts inconsistent with the agreement are not enough.  However, intent to rescind need not be expressly stated.  Rather, mutual acts having the effect of rescinding the agreement are sufficient.  Therefore, a mutually agreed upon subsequent conflicting contract rescinds an earlier agreement.  Higgins, 123 Wn.2d at 168 (later mutual wills, each referring to the other spouse’s will, act to rescind a prior community property agreement with which they conflict).

            Separate Property Agreements

Spouses may also enter a “separate property agreement” and agree that existing and/or future acquisitions that would otherwise be community property will be separate in character.  There is a high standard of proof for such an agreement because of the strong presumption of community property and  separate property agreements must be fair.

            Prenuptial Agreements

A prenuptial agreement (also referred to as a premarital or antenuptial agreement) is a contract entered into by prospective spouses prior to marriage, but in contemplation of and in consideration thereof.  From the agreement, the property rights of one or both of the prospective spouses are determined or are secured to one or both of them or to their children. Parties to a prenuptial agreement must exercise the highest degree of good faith, candor and sincerity in all matters bearing on the proposed agreement. Prenuptial agreements are contracts in derogation of what the law would otherwise provide and are very closely scrutinized.  The courts insist on either a fair and reasonable contract or procedural fairness.

Please see more about prenuptial agreements in Celebi Law Office website blog pages. 

Washington Community Property Law

 

Community Property Law in Washington State

Community property law in Washington determines the character of a property in marriage or a marriage like relationship. The relationship between spouses is regarded as a type of partnership.  The marriage is a community of which each spouse is a member, equally contributing by his or her industry to its prosperity, and possessing an equal right to succeed to the property after its dissolution.  In a divorce proceeding the court distributes all property, community or separate, equitably between the parties.  That means, a party with more separate property may get less than half of the community property if the court finds that such distribution is equitable. The word ” equitable” does not mean “equal” or “50/50”.  Celebi Law Office is here to help you navigate through the difficult and complex process of divorce and aggressively protect your financial interests.

Characterization of Property 

During a marriage, the property of the spouses may be the husband’s separate property, the wife’s separate property or community property.  Property is “characterized” as separate or community  depending on when, where and how it was acquired.  It will be relevant whether property is acquired before, during or after the marriage; whether it is acquired while the couple is domiciled in a community property or a common law state; and whether it is acquired by onerous effort or through some form of gift. Washington community property law helps determine the character of a property.  However the characterization of a property, in many cases, is not straight forward. In fact, it can be very complex.  Your best bet is to consult with an experienced community property attorney and avoid costly mistakes.

            Separate Property

Separate property is property acquired before marriage or acquired during marriage by gift, bequest, devise or descent together with the rents, issues and profits thereof.  RCW 26.16.010.

Also when husband and wife living “separate and apart,” their respective earnings and accumulations are the separate property of each.  RCW 26.16.140.  Mere physical separation does not establish they were living “separate and apart” so as to negate the existence of the community.  The test is whether the spouses by their conduct have exhibited a decision to renounce the community with no intention of ever resuming the marital relationship.  A couple is living “separate and apart” for purposes of this statute only when the separation is permanent and the marriage is “defunct”.  It is not necessary for the operation of RCW 26.16.140 that a dissolution action be filed.

            Community Property

In Washington, community property is all other property acquired by either spouse after marriage that is not separate property.  RCW 26.16.030.  Property acquired during marriage by either spouse is presumed to be community property.  A gift to both spouses normally creates community property unless the donor expresses a different intention.

            Agreement of the Spouses May Change Community Property to Separate Property

Absent a valid contract between the spouses declaring otherwise, all property acquired during marriage that is not otherwise defined as separate property by statute is community property.    Spouses may by contractual agreement change their separate property into community or their community property into separate property.  RCW 26.16.120.  Creditors will not necessarily be bound by the spouses’ agreement to change the character of property.

Domestic Violence in Parenting Plans

Find out how to protect your child from domestic violence:

The question comes up often: She is married or living with a man with history of domestic violence, how do I protect my child?

This is a very valid concern and the answer lies within the statute,  RCW 26.09.191.  This statute deals with restrictions in temporary and permanent parenting plans.  Specific to the above stated issue, section 2(b)(ii) in part states:  “The parent’s residential time with the child shall be limited if it is found that the parent resides with a person who has engaged in any of the following conduct: … (ii) a history of acts of domestic violence as defined in RCW 26.50.010”  As it is clear from the statute the courts shall limit the residential time of the parent who resides with a person who has a history of domestic violence.  The domestic violence referred to in the statute means any act of domestic violence in the past against anyone.

So, if your ex or the other parent of your child is residing with a person who has a history of DV, you can ask the court to reduce the other parent’s residential time with your child.  This might also allow you to modify your current parenting plan.

Modifying a permanent parenting plan is something the courts are extremely reluctant to do and there is a high threshold for a major modification.  A major modification refers to changing of the residence of the child.  That means,  if the child is residing majority of the time with the mother and the father has visitation,  changing the child’s residence to father’s home would constitute changing of the child’s residence.  This would be a major modification requiring overcoming of a very high threshold.

In the case of one of the parent’s residing with a person who has a history of DV, the limitation of the residential time with that parent might overcome the threshold.  RCW 26.09.260 requires a substantial change in circumstances for modification of a permanent parenting plan.  Marrying or residing with another adult would constitute a substantial change in circumstances if it occurred after the entry of the parenting plan or at the time it was unknown to the court.

Once the substantial change in circumstances test is met, and subsequently the limitation to the residential time with parent living with the person who has a history of DV is accomplished, the only question that remains is whether the limitation in residential time is enough to warrant a change in the residence of the child.

If the limitations are such that the residential parent’s time with the child is reduced to the point that the other parent now has more residential time with the child, then most likely the change of child’s residence is due.  With that a major modification would take place.

The other avenue is to look for a major modification in RCW 26.09.260(2)(c).  That section looks at whether the child’s present environment is detrimental to the child’s physical, mental, or emotional health.

In a major modification of a parenting plan attempt it would be wise to use arguments grounded on both of the above statutes, not just one.

If  your child’s other parent one day gets married or begins residing with an adult, you should conduct a background check on that person.  If  he has a civil or criminal DV protection order issued against him you might have good case of limiting other parent’s residential time in order to protect your child.

 

 

 

 

Ratings and Reviews