Prenuptial Agreements in D.C.

A look at the basics of prenuptial agreements in D.C.

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Several decades ago, many jurisdictions in the United States didn't allow prenuptial agreements, thinking they were detrimental to marriages. That way of thinking has given way to the unfortunate reality that divorce is a relatively frequent occurrence, and marrying couples should be able to chart their own financial destiny. Today, more and more couples use prenuptial agreements to bring financial certainty to their future.

States have varying rules regarding prenuptial agreements. This article will explain the District of Columbia's definition of a prenuptial agreement, what it may include, and what makes the agreement enforceable.

What Is a Prenuptial Agreement?

A prenuptial agreement, also termed a "premarital agreement" in D.C., is an agreement prospective spouses sign prior to marriage or domestic partnership, to determine how certain issues will be decided in the event of a divorce or separation. In prenuptial agreements, couples contract to trade marriage or domestic partnership itself for certain financial conditions like property division and alimony.

Who Should Get a Prenuptial Agreement?

Many couples decide to enter into prenuptial agreements, for a variety of reasons. Although these agreements can be useful tools for someone with considerable wealth to protect those assets from a divorce, people obtain prenuptial agreements for everything from protecting a retirement account to deciding how to split credit card debt.

Reasons that you may be interested in having a prenuptial agreement include:

  • you or your spouse have assets you've owned prior to the marriage that you want to protect from division in a divorce or separation
  • one of you wants to protect an inheritance for children from a previous relationship
  • one of you has a premarital business, or an interest in a business, and you want to ensure it stays yours after divorce or separation
  • you and your spouse simply want to decide how you will split your estate if the marriage or domestic partnership ends, or
  • you and your spouse have agreed whether one will pay the other alimony in the event of a divorce or separation.

What Issues Can a Prenuptial Agreement Cover?

In D.C., prenuptial agreements can cover almost anything that doesn't constitute a crime, or is against some public policy. Most commonly, however, prenuptial agreements determine the financial rights and obligations of each spouse during and after the marriage or domestic partnership.

Couples may sign prenuptial agreements to address any of the following:

  • both spouses' rights and obligations regarding property owned by either spouse
  • each spouse's right to buy, sell, use, transfer, or otherwise manage property owned by either spouse
  • how property is divided after a separation, divorce, annulment, death, or some other event
  • spousal or domestic partner support
  • the ownership rights of the death benefit from a spouse's life insurance policy
  • whether either or both spouses must create a will to carry out the terms of the agreement, and
  • any other issue the spouses agree to decide prior to marriage or domestic partnership.

Can a Prenuptial Agreement Determine Child Custody and Child Support in D.C.?

D.C. law doesn't allow prenuptial agreements to decide child support or child custody. Courts decide both of these issues at the time of the parents' separation or divorce. Judges determine child custody based on the child's best interest at the time of the parents' separation. Similarly, courts base child custody on each parent's present income and ability to pay, as well as the child's current needs.

How Can I Ensure my Prenuptial Agreement Is Enforceable in D.C.?

D.C. has passed the Uniform Prenuptial Agreement Act (UPAA), which is a set of rules that several states use to determine the enforceability of prenuptial agreements.

Under the UPAA, prospective spouses must both sign a written prenuptial agreement for it to be enforceable. The agreement takes effect when the couple marries.

A D.C. prenuptial agreement isn't enforceable when the spouse challenging the agreement ("challenging spouse") proves that:

  • he or she didn't sign the agreement voluntarily, or
  • the agreement was unconscionable ("illegally unfair") when it was signed, and the challenging spouse:
    • wasn't given a fair and reasonable disclosure of the other spouse's assets and debt
    • didn't sign a waiver giving up the right to receive a fair disclosure of the other spouse's assets and debts, and
    • didn't, and couldn't, have knowledge the other spouse's assets and debts some other way.

Courts determine unconscionability on a case-by-case basis, but it's extremely rare for a court to find a prenuptial agreement unconscionable. If a prenuptial agreement eliminates spousal or domestic partner support, which results in the lower-earning spouse requiring public financial assistance, the judge may require the higher-earning spouse to pay enough support that the lower-earning spouse isn't eligible for public assistance. Otherwise, even prenuptial agreements that result in a wide disparity in wealth between ex-spouses or ex-partners are usually still enforceable.

Likewise, it's very hard to prove that an agreement wasn't signed voluntarily. Being pressured to sign the agreement doesn't equate to signing the agreement involuntarily. One spouse must threaten the other spouse with physical or psychological harm for a judge to find that the challenging spouse signed the agreement involuntarily.

Also, the rule stating that each spouse must give a fair and reasonable disclosure of assets and debts to the other spouse only requires that each spouse provide reasonable accurate descriptions and estimates of property; spouses don't have to provide exact written figures. Spouses can give financial disclosures orally, but the best practice is for each spouse to prepare a certified personal financial statement and for the couples to attach both statements to the prenuptial agreement.

When a marriage is annulled or otherwise void, courts usually won't enforce a prenuptial agreement. Judges will only enforce part of a prenuptial agreement if it's necessary to avoid some injustice.

A couple that wants to amend or revoke their prenuptial agreement must put their intentions in writing and sign it.

If you have additional questions about D.C. prenuptial agreements, contact a local family law attorney for advice.

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