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Planning around spousal support issues in divorce, P.2

Last time, we began looking at how couples can plan around spousal maintenance in divorce. We’ve already looked a bit at separation agreements and how couples can use them to determine the outcome of spousal maintenance.

Couples may also modify spousal maintenance rights by marital agreement, whether by prenuptial agreement or postnuptial agreement. This includes waiving the right to spousal maintenance, as well as determining in advance the type, amount and duration of maintenance. The key with prenuptial agreements is to make sure they are properly drafted and validly executed. 

When one or both parties to a marital agreement want to include terms modifying spousal maintenance rights, it is important for them to work with separate attorneys and to proceed cautiously so as to ensure the agreement will be enforceable if it is challenged later on in court.

The primary concern of the courts with any marital agreement will be whether the agreement was fundamentally fair economically. If the agreement is determined to be unfair, courts will also consider whether there was full disclosure, whether the agreement was fully voluntarily, and whether both parties had independent representation.

Including a spousal support provision in a marital agreement isn’t always a wise course of action, and it is particularly important for the financially weaker party to carefully consider the entirety of the agreement before waiving or determining in advance his or her spousal support rights. An experienced attorney can help such a party to carefully assess the situation and to ensure his or her interests are represented in the negotiation process.

Source: Matter of Marriage of Foran (1992) 67 Wash.App. 242, 834 P.2d 1081.

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