Prenuptial agreements are touchy subjects. Sometimes they can be perfectly fair and fine contracts between soon-to-be spouses. Other times they can grossly favor one spouse over the other.
In a previous blog post, I discussed how divorcing spouses may challenge their prenuptial agreement. Courts apply a two-pronged test to determine whether to uphold the agreement: (1) was the agreement substantively fair at the time it was executed? and (2) was the agreement procedurally fair. Substantive fairness relates to the substance of the contractual terms. By contrast, procedural fairness concerns the circumstances leading up to signing the prenuptial agreement.
A specter of procedural unfairness might arise if the prenuptial agreement is negotiated too close to the wedding. Posed as a question: when was the idea of a prenuptial agreement first broached?
The concern is how one party may not have sufficient time to be adequately advised and to negotiate fair terms in the prenuptial agreement. Lacking sufficient time, one person might simply accept the agreement (however unfair) because either it is too late to call off the wedding, or unfeasible to negotiate terms while planning and preparing for the wedding. This is especially true where the spouse pushing for the prenuptial agreement gives the impression that he or she will not go through with the marriage absent agreement. There is also a level of embarrassment here. No one wants to call family members to inform them: The wedding is off—we couldn’t agree on the prenup—so you can cancel your flight.
The issue is most pronounced when the wedding date is around the corner. Case law illustrates how little time there is for one spouse to review the prenuptial agreement. In the case of In re Marriage of Foran,[1] the husband and his attorney worked on the agreement for over a month, but did not relay it to the wife until two days before the parties left for their wedding trip. In In re Estate of Crawford,[2] the wife saw the first draft of the prenuptial agreement just three days before the wedding. In In re Marriage of Berg,[3] the amount of time to evaluate the prenuptial agreement lasted just 30 minutes, with just five days between the draft prepared by the husband’s counsel and the date it was signed. In In re Marriage of Bernard,[4] the husband and his attorney worked on the prenuptial agreement for almost six months before sending the wife and her attorney a first draft, just 18 days before the wedding; and then, just three days before the wedding, the husband’s counsel sent a “substantially different” draft from the original agreement.
In each of these cases, the trial judge invalidated the prenuptial agreement finding a lack of procedural fairness. However, a prenuptial agreement signed on the eve of a wedding does not necessarily mean it is going to be invalid. The terms could nonetheless be substantively fair. And sometimes it takes until the eve of the wedding to come to an informed decision about whether to sign the agreement. In In re Marriage of Ressa,[5] the wife challenged her prenuptial agreement and testified that the topic was broached for the first time two weeks before the wedding; even so, the trial court upheld the agreement. Likewise, in Kellar v. Estate of Kellar, the court noted “[t]here is nothing inherently fatal about signing a prenuptial agreement 5 days before the wedding.”[6]
[1] 67 Wn. App. 242 (1992).
[2] 107 Wn.2d 493 (1986).
[3] 177 Wn. App. 1026, 2013 WL 6153185 (2013)
[4] 165 Wn.2d 895 (2009),
[5] 109 Wn. App. 1048, 2001 WL 1613674 (2001).
[6] 172 Wn. App. 562 (2012).
