Why You Should Have a Prenuptial Agreement – Avoid Unintended Changes to the Characterization of Property
In general, assets acquired by a spouse before marriage are considered separate property. Under Washington Law, once property is established as separate “a presumption arises that it remains separate property in the absence of sufficient evidence to show an intent to transmute the property from separate to community property. The character of separate property can be changed to community property only if clear and convincing evidence shows that the spouse intended to make such a change.” This means that your separate property may not remain your separate property.
In prenuptial agreements, it is important to identify separate assets with specificity, but it is also important to include what happens to the characterization of those assets during the marriage. For example, if a spouse owns a home prior to marriage as their separate property and later adds their spouse to the title of that home, does that change its character from separate to community? The answer is ‘it depends.’ The Court must weigh the evidence of the intent of the title transfer and determine whether that action was a gift to the community or simply an intent to jointly title an asset. It is a nuanced distinction but can have a significant impact on the distribution of assets and debts.
These are issues that can be easily resolved in prenuptial agreement to ensure that both parties understand what is to remain separate and what could become community. You may include provisions that describe the acts necessary to transmute separate property to community property and what acts do not.
Our Family Law Group is available to assist you with all family law related matters including prenuptial and postnuptial agreements, dissolutions, separations, support, and parenting plan matters. Please contact our office at info@beresfordlaw.com or (425) 776-4100 to schedule a telephone or video conference.