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Why work with an attorney to negotiate your marital agreement? P.2

We’ve been looking in recent posts at the topic of marital agreements, specifically agreements established during a marriage. As we’ve noted, such agreements are becoming more popular among couples, but it is important for parties to such an agreement to be well represented to ensure they are not disadvantaged by coercion or unfair terms.

One important point to mention with regard to the above point is that there is somewhat of a legal priority given to the substantial fairness of a postnuptial agreement as opposed to its procedural fairness. This is true in that, if a party is able to demonstrate that the terms of the agreement are fair, courts are not required to weigh the procedural fairness of the agreement when determining whether enforcement is proper.

That being said, procedural fairness is certainly important, which is why parties should take precautions in formally executing the agreement. Typically, state law requirements for execution are not that complicated, requiring perhaps that the agreement is written and signed by two witnesses. In the state of Washington, postnuptial agreements do not necessarily have to be written to be enforced, provided a party can demonstrate the existence of the oral agreement and that the terms of the agreement were observed through the duration of the relationship.

The safest bet in executing a postnuptial agreement, of course, is to lay it out in writing and require witnesses to sign the agreement. Working with an experienced attorney helps ensure that other necessary precautions will be taken to ensure the effectiveness of the agreement.

Source: 170 Wash.App. 631, Court of Appeals of Washington, Division 1 (2012)

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