Transfer on Death Deed and What It Is

In Washington recently now exists a new form of transferring real property. This form is called the “Transfer on Death Deed” (also known as a beneficiary deed).  

RCW 64.809 explains what Transfer on Death Deed is and how it works.  

 With this Transfer on Death Deed, a property owner can convert an otherwise-probate asset into an asset that will pass outside of probate. As with joint tenancy, the administrator should carefully review the deed to ensure that it is a proper beneficiary deed. This deed must include the following:

1.  It must include all essential elements and formalities of a properly recordable inter vivos deed
2. It must state that the transfer to the designated beneficiary is to occur at the transferor's death; and
3.  It must be recoded before the transferor's death in the public records in the office of the auditor of the county where the property is located.  

To be effective there is no need even tell the beneficiary of Deed of its existence during the transferor's life, which means a person can create, sign and recorded a Transfer on Death Deed and not tell the beneficiary of the Deed about its existence.

After the death of the owner, the beneficiary does not prepare a new deed to show his or her new ownership to the property. Instead, the beneficiary records the death certificate of the owner with the county Recorder's Office, using the approved coversheet that identifies the property. The new owner will also need to file a real estate excise tax affidavit, although no excise is due unless the owner prepared the deed to satisfy a contractual obligation to the beneficiary, which is rare.  

It is important to know that the Transfer on Death Deed can be revoked any time during the transferor's life as long as the procedure outlined in the RCW 64.80.080 is followed.

If the Transfer on Death Deed has NOT been recorded yet, the transferor can revoke it by:

1.  signing a different Transfer on Death Deed that is inconsistent with the Transfer on Death Deed or expressly revokes it; or 
2.  signing an instrument or revocation that expressly revokes the Transfer on Death Deed; or 
3.  singing an inter vivos deed that expressly revokes the  Transfer on Death Deed.

 That document that is used to revoke a Transfer on Death Deed must be acknowledged by the transferor and recorded before the transferor's death in the public records.

After a Transfer on Death Deed has been recorded, it may not be revoked by a revocatory act on the deed.

How to Get an Attorney's Help with a Reduced Fee

We all know that attorney’s services are quite expensive. At this I want to show options to the people who have income and can pay, at least partly, for services of an attorney.

For those who have some funds available, there are four options.

1. Moderate Means Program. More information could be found here. To be eligible for the MMP, you must have issues related to family, consumer or housing law and your household income must fall between 200% - 400% of the federal poverty level.

Federal poverty levels could be found here. For a household with 1 person, the FPL is $12,410 annually. 200%-400% constitutes $24,280 - $48,560.

Please note that unless your income is very close to the poverty level, you will not receive free legal services but attorney’s fee will be reduced.

2. For family law issues, you can use limited license legal technicians. I wrote about them in one of my previous posts here. More information can be found here.  
They cannot represent you at the court hearings, but they can consult and advise you, complete and file all legal paperwork, help with court scheduling, and explain court rules to you.

3. For real estate matters, you can consult a limited practice officer. More information is found here . “A LPO is licensed to select, prepare, and complete approved documents for use in closing a loan, extension of credit, sale, or other transfer of real or personal property.”

4. For family law matter, in King County there are also Family Law Facilitators. More information could be found here. 

They help only with specific legal actions and only people who are not represented by an attorney. But they do not give legal advice you help you fill out legal forms. They also charge $30 per visit.

5. There are also self-help materials available here. They provide not only forms but also instruction on how to fill them out and what to do next.

It is important to understand that those materials are limited and rather general. Naturally, they do not give you any legal advice and do not help you to analyze the law applicable to your situation.

Additional help is available free of charge (pro bono) at 211 Legal Referral and Information Hotline here. You can call them at 211  from Monday through Friday from 8 am to 6 pm in the King County.

The other option is to talk to me. I do not provide pro bono help but I can reduce my fee, if necessary, or we can discuss a payment plan that will work for you.

DIY divorce: Part II

In uncontested divorces procedure is very simple. It could roughly be divided into 4 easy stages

1. Preparing initial documents
2. Filing the initial documents with the court
3. Preparing final documents
4. Finalizing your divorce at court.

1.      Preparing initial documents.

Initial documents consist of Petition for Dissolution of Marriage, Confidential Information Form, Certificate of Dissolution, and Agreement to Join Petition. Petition and Joinder could be included in one form.

Petition for dissolution of marriage is a document that informs the court and your spouse that you want a divorce.

All mandatory forms could be found at Washington State Court Forms here.

The first document that needs to prepared is Petition for Dissolution of Marriage. At this date, the forms are very easy to fill out and are self-explanatory. Also Northwest Justice Project created very good instructions on how to fill out those forms. The instructions could be found here.  Instructions on how to fill out the forms start at page 15 of the packet.

The most important part is sections 12 – 14, which discuss division of property and debt. My recommendation is to include in the Petition all property (expect for personal property, and furniture) that you and your spouse have. Ideally the Petition should contain your agreed upon division of property and debt.

Property includes following items:

1.      Real property such as houses, condominiums, land, timeshares.
2.      Vehicles including cars, motorcycles, boats, jet ski, etc.
3.      Bank accounts – all bank accounts, including checking, savings, brokerage, investment and other.
4.      401K and other retirement accounts.
5.      Stocks, bonds, stock options, etc.
6.      Businesses or shares in businesses.
7.      Any items of value such as art objects, pianos, jewelry, etc.

Debts include:

1.      Mortgages on the real estate, loans (personal and car loans)
2.      Credit cards, even those that are not currently in use.
3.      Personal loans from people

My clients always ask me how the assets and liabilities should be divided between spouses. Should it be 50/50 split?

RCW 26.09.080 states that “the court shall, without regard to misconduct, make such disposition of the property and liabilities of the parties, either community or separate, as shall appear just and equitable …” In other words, there is no formula.
It is essential to remember that the court will NOT change the division of assets and liabilities once the court signs the Decree. RCW 26.09.170  provides that “the provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state.”

That means the Petition must be signed by both parties and it must contain final division of assets and liabilities.

At the end of the Petition, there is section that is called Joinder. It should be filled out by Respondent spouse if the spouse agrees to join the Petition. It is my recommendation that in uncontested divorces both spouses sign the Petition.
What happens if responding spouse refuses to join the Petition? Usually it means that there is a chance that spouse will change their minds. In that case, I recommend to file a Petition that the filing spouse wants, not what they both agreed to. Once the Petition is filed, there is no way to take it back.
The Confidential Information Form is located here. And Certificate of Dissolution is located here.
The forms are self-explanatory.

2.      Filing the initial documents with the court.

Once Petition for dissolution with Joinder, Confidential Information Form and Certificate of Dissolution were prepared and agreed upon by both spouses, they need to be signed and the Petition must be signed by both spouses.

To file the initial documents, you must go to the clerk’s office at the Superior Court in the county where you live.

King County superior court has two locations:

1.      Seattle Courthouse - 516 Third Avenue, Room E-609, Seattle, WA 98104

2.      Norm Maleng Regional Justice Center - 401 Fourth Avenue N, Room 2C, Kent, WA 98032

Chose the courthouse that is closer to your home.

Pierce County superior court is located at 930 Tacoma Ave South, Room 334 County-City Bldg., Tacoma, WA 98402

Snohomish County superior court is located at 3000 Rockefeller Ave, M/S 605,  Everett, WA 98201.

Divorces require a filing fee which is paid to the Clerk at the time the action is filed. Payment can be made by cash, money order or personal check if it is drawn on a Washington State Bank. If you are unable to afford the filing fee, you may file a Fee Waiver Request.

In Washington State filing fee for dissolution of marriage action is $314.

3.      Preparing Final Documents

Final documents include: Notice of Hearing, Decree of Dissolution of Marriage, Findings of Fact and Conclusions of Law.

The forms are located here.

The instructions created by Northwest Justice Project can be found here.

In short, your Decree and Findings of Fact and Conclusions of Law should be same as the Petition and should be signed by both spouses.

If your responding spouse does not agree to sign the documents identified above, you still can finalize the divorce but it will not be as fast. I will address this situation in a later blog post.

               4.      Finalizing Your Divorce

Your divorce can be finalized only 90 days after the initial documents were filed with the court. There is no way to avoid this rule.

The step by step process of finalizing the divorce is very well explained in here.

First step is  - Prepare two copies of the final documents.

Second step - 2 weeks prior to the completion of 90 days cooling off period, you or your spouse must go to the clerk’s office in person and file a Notice of Hearing. This way you will set up a hearing date for your divorce.

Third step - the same date, you must drop off copies of the final documents to the judge’s mail room. Those will be judge’s working copies. Sometimes in uncontested divorces working copies are not required, so it is best to ask a court clerk. Also they will tell you where to drop the working copies to.

Fourth step – at the date of the hearing, you must come to the court room with all original paperwork.

Your name will appear on the computer monitors in the lobby for the courtroom where you are scheduled.

Do NOT bring children with you.

Go to the court room and wait for your name to be called. Once  you are called, you must come forward and follow judge’s instructions. You will need to answer judge’s questions under oath. Be sure your answers are complete and truthful. Questions will include the following:

• Is your marriage irretrievably broken?
• Have you provided for division of property and liabilities?
• Did you review Decree of Dissolution and Findings of Fact and Conclusions of Law?
• Do you agree with the division of assets and liabilities stated in those documents?
• Are you or is your wife pregnant?

After you answer all of the questions, the judge will sign the original orders.

Finally, sometimes you will be given original orders back. That means that you need to make a copy of the orders and drop of originals at the clerk’s office for filing with the court. YOUR DIVORCE IS NOT FINALIZED UNTIL THE SIGNED COURT ORDERS ARE FILED WITH THE COURT. It is essential that you do not take the signed orders out of the court house.

How to prepare financially for divorce

One of the main goals of every divorce is to create two financially and otherwise separate individuals. Financial independence is the inevitable result of all divorces.

Step I.

If you are not completely sure that you want a divorce, but you are contemplating one, I recommend you to do the following:

First, write a budget. You need to know how much you spend on necessities of life and how much you make. If your income is low right now, you need to know how much money you will need to live independently from your spouse.

A realistic budget will help to determine amount of spousal maintenance that a low-income spouse may be entitled to. It is necessary to remember that in Washington State judges do not use a formula when they determine amount of spousal maintenance. They look at financial situation of both parties, at their realistic needs (budgets) and financial abilities.

In cases, where both spouses have income, budgets help to plan for their financial future. When writing it, I recommend to start with figuring out your living arrangements (rent or live in the current family house).

If you want to stay in the house, you need to find out if you can refinance it in your name only. Sometimes people want to stay in the house, but cannot really afford to pay mortgage and are not eligible for refinancing the house in their only name.

If you intend to rent, you need to know how much that rent will be.

Second, figure out if you have any credit history. You should check your credit score. A good credit score is crucial for your financial future. It will help you to rent an apartment (if necessary), get a credit card, or refinance mortgage in your name only.

Third, open one or two credit cards in your name only. That way your spouse will not have a chance to cancel your credit cards without your permission. Also paying off credit cards will help you to raise your credit score.

Fourth, get following financial documents:

• Tax returns for the last 5 years with all schedules and W-2s.
• Paystubs for the last year, if possible. You should get your paystubs and your spouse’s paystubs. However, this items might not be accessible to you.
• Bank statements from all bank accounts, including checking, savings, investments, retirement accounts.
• Insurance statements and explanation of benefits from all employers.
• Credit card statements, mortgages and other loans statements for the last year. Other information about debt.
• Wills and/or Trusts
• All written agreements.

Finally, figure out what property and debt you and your spouse have at the moment. At first write a list of the property and liabilities that you and your spouse have. Once you have compiled the list, you should start gathering financial documents including:

• Real property – deeds, escrow papers, mortgage balances, monthly payments of the mortgage, tax property assessment information. You can even schedule an assessment of the property to see currently market price of it. Please note, Zillow.com is not very reliable when it comes to assessment of the market price but it gives an working estimate.
• Cars, boats, other motor vehicles – registration slips, titles, loan documentation.
• Pension plans, 401K, other retirement accounts – you will need copies of all financial statements available.

Normally there is no need to compile a list of household items, unless they are very valuable. In that case, it is best to take pictures (with dates on the pictures) of those items.

Step II.

Once you are ready to file for divorce or your spouse have filed for divorce:

Open a different account in your name only and preferably in a different bank that your current bank accounts.

After you open that account, you should transfer your most recent paycheck to that account and set up payments to go to your separate account.

If you are afraid your spouse will close access to the finances after you inform them about your intent to file for divorce, transfer some funds to your new account.

If you consider your spouse to be reasonable, discuss the matter of divorce first. It is essential that you bring up the issue of money. You should have some sort of an agreement on how much money you can transfer to your new account for your living/moving expenses and to hire an attorney, should you decide to retain one.

Talk to a CPA about your taxes and how to minimize them. Taxation is the second largest financial setback endured during the divorce. People with larger income might end up paying additional taxes after the divorce is finalized. Talking to a CPA might help you to avoid additional tax burden.

III. Things to avoid doing

First, do not close accounts, move assets from one account to another, or make other financial changes. All activity that is out of the ordinary should be avoided as it could give the appearance you are trying to hide funds.

Second, do not pay off community debt. Keep making payments as usual. All community debt will be divided between you and your spouse. If you pay it off now, you will not be able to ask for reimbursement of those payments later.

 

I have created a Budget form and Property and Liabilities Checklist. If you want those documents, please email me at info@khorunlaw.com and I will give them to you free of charge.

Do It Yourself Divorce. Part I

Some people consider doing divorce themselves. I wanted to address this question on when representing yourself in divorce is a good idea, what to be aware of and how to do it properly.

 

Before I go into the details of DIY divorce, it is necessary to note that the Washington state is the first state where one can get a qualified help with divorce from a Limited License Legal Technicians, also known as paralegals.

 

The idea behind a new invention of the legal technicians is to "offer and affordable legal support option to help meet the needs of those unable to afford the services of an attorney." However, one does not need to have low income to hire a legal technician.

 

They are trained and licensed to give legal advice to people going through following matters:

1. All family law matters
2. In a few years elder law, landlord tenant disputes, and immigration will be added as practice areas.     

 

 Legal Technicians can give legal advice on specific matters meaning

1. Get relevant facts from clients 
2. Apply legal standards to those facts and inform clients about that
3. Give advice on how best to manage their legal action and recommend a specific course of action
4. Perform legal research to answer client's specific questions
5. Prepare legal documents for them
6. Advice clients on how to represent themselves in court proceedings

 

Legal Technicians CANNOT

1. represent clients in court
2. Negotiate on behalf of the client
3. Prepare documents other than those that were approve by the Limited License Legal Technician Board.

 

Legal Technicians can be found in the LLLT Directory.

 In addition to licensed legal technicians there are a wide variety of online services that offer to fill out paperwork for you and even file it with the court. They ask for a modest fee so some people feel compelled to either use them or cite their fee as a guide of how much an attorney should charge for their work.

 

If I were to choose between the two above-identified options,  I would go with Legal Technicians. They have to fulfill requirements to become Legal Technicians. Full list of requirements could be found here.

 

In contrast to Legal Technicians, qualifications of online services are unknown. As far as I understand, in front of a computer could be anyone filling out your forms for you. I would not trust my legal action to someone whose knowledge and experience is unknown.

 Now, when is it a good idea to use Legal Technicians?

 

First, when your funds are so limited that you cannot afford an attorney and you are not qualified for programs designed for low income clients.

 

Second, when your case is so small and uncomplicated that you could do it yourself (I will provide a definition of "small and uncomplicated cases" later in this post) and you do not have time to actually do it yourself.

 

In all other cases, you are better off with hiring an attorney to represent you.

 

Why you need an attorney?

 

 My position is that you always need an attorney to represent you in your dissolution of marriage case. There is one tiny exception to this rule. I will define it at the end of this post. The question remains: why do you need an attorney in  your divorce case?

 

First, your case might be complex and it would not be possible for you to even figure out your legal rights. Some cases involve many complicated legal issues such as service of process on the opposing party that is currently in another country, division of 401k plans, brokerage accounts, real estate and other property that is not easy to divide, spousal maintenance and its calculation, domestic violence and ways to deal with the allegations of it, etc. Majority of people simply do not have time to research those issues. Moreover, it is important to remember that research must be done in a law library or by using Westlaw or Lexis. Internet provides with the answers but they are incomplete and often contain only brief explanations without details that are essential in family law.

 

Second, you need to know legal procedure. When you are served with a motion for temporary orders, what are the deadlines for filing the response to it? Do you need to confirm the hearing? Where and how to do it? Do not forget about working copies to the judge. There might be a page limit to the motion and your declaration as well. Those and other procedural requirements are stated in the court rules and are different in different counties. Your attorney will consult Washington court rules and local rules for the county where your case is filed.

 

 Please remember that if you do not follow local rules, the judge might exclude the evidence, might refuse to hear your motion or might even grant the motion of the opposing party with the exclusion of your declaration.

 

Third, you hire an attorney to reduce stress from the divorce. Divorce is very stressful as is. Your life as you know it has ended. In the next few months you will need to divide finances with your spouse, determine parenting plan for the children, most likely to find a new place to live and move out or see your spouse to move out and deal with other issues associated with the breakup of the relationship.

 

 "Divorce represents the death of a marriage and all the hopes and dreams that went into it. And the death of a marriage, like any death, requires a grieving process for healing. In almost every divorce filled with unending rage, conflict, and injury is at least one spouse, if not two, resisting this process and becoming stuck. During the divorce, an emotionally intelligent person will pass through a grieving process resembling Dr. Elisabeth Kubler-Ross's five stages of grieving death (denial, anger, bargaining, depression, and acceptance). See full article here.

 

It is highly unwisely to add additional stress of navigating unknown legal world to the stress of separating from your spouse.

 

It is my job as an attorney to make sure that everything is done properly, on time, all documents are prepared correctly and in full representation of your interests. While I am dealing with all that, you can safely grieve the end of your marriage, and work on moving on with your life. What you do is very important and you should have enough time to take care of yourself.

 

Finally, by hiring a professional to help you through divorce process, you ensure that your divorce is going fast without unnecessary delays and avoiding mistakes. It is easier to prepare everything right the first time around than to repair mistakes made later.

 

For example, I have a few clients who prepared parenting plans themselves only to come back in a few years asking to make those plans more realistic. Modifications of parenting plans are difficult and require substantial change of circumstances. And they are also rather expensive and time consuming.

 

 When parenting plan can be changed, divisions of assets and liabilities are almost always final. If you make a mistake when dividing property and debt, the court will refuse to correct that mistake. RCW 26.09.170 expressly states that "The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state."

 

That is why it is essential you do everything correctly during the divorce process. And the only way to ensure that is to hire an attorney to represent your interest.

Finally, when can you represent yourself in divorce?

 

It is ok to represent yourself in divorce when you case is small and uncomplicated meaning:

 

 

1. You have been married for less than a year and you did not merge your and your spouse's finances yet or finances could be easily separated. The shorter the marriage, the easier it is to put people in the same position as they were before the marriage. Short marriage also usually means that people did not buy property together and in general it is easier for them to agree on how to divide assets and liabilities.

 

There is an exception to short term marriage rule - parties have no minor children, and no property (except cars and small bank accounts), and they reached an agreement on how this property should be divided between them.

 

AND

 

2. You have no children with your spouse. Having children means that you will have to agree on Parenting Plan and calculate child support. Creation of workable Parenting Plan might be a challenge. It is essential to remember that changing parenting plan is not that easy, especially when the other party disagrees. Correct calculation of child support is also essential. Also the fewer documents to need to prepare to divorce, the fewer mistake you will make. Adding Order on Child Support, Child Support Worksheets, and Parenting Plan to the list of documents to prepare is increasing your chances of making mistakes that will be difficult to correct after the divorce is finalized.

 

AND

3. You and your spouse both work. If you both can support yourselves and especially if your incomes are similar, issues of spousal maintenance and attorney's fees are eliminated.

 

AND

 

4. You and your spouse agree on all issues.

If your case is small and uncomplicated as defined above, read on. In the next blog post I will explain how to start the divorce process.

Understanding Uninsured Medical Expenses

If you want to get divorced in Washington State and you have minor children, the court will have to enter an Order for Child Support (OCS). Among other things  OCS always contains a section on medical insurance for the children and how uninsured medical expenses are divided between the parents.

What are "uninsured medical expenses?"

RCW 26.18.170(18)(d) defines “uninsured medical expenses” as “premiums, copays, deductibles, along with other health care costs not covered by insurance.”

How are they divided between parties?

In many cases, one parent is responsible to maintain health insurance for the children and both parents share the cost of uninsured medical expenses. Occasionally, parents agree that only one of them will be responsible for 100% of the uninsured medical expenses.

As we all know, many insurance companies required people to seek care at their approved facilities/providers or obtain pre-approval for out-of-networks doctors or facilities. Failure to follow that requirement usually results in insurance company’s refusal to pay for the treatment received.

When both parents are sharing the cost of uninsured medical expenses, they both are interested in lowering that costs and thus both have an incentive to follow procedures of their health insurance company. But when only one parent is responsible for 100% of the cost, then what is the incentive of the other parent to follow the procedure? What happens if they don’t?

In recently released published opinion In Re The Marriage Of: Victor M. Zandi v. Deanna M. Zandi, the Division II of the Court of Appeals looked at exactly that situation, where father was responsible for 100% of all uninsured medical expenses and mother took the child to an out-of-network facility to receive first diagnose the child with kidney stones and then to do the follow up surgery to remove a large kidney stone.

“The nearest Kaiser (health insurance Company) medical facility was 4 to 8 hours away. The aunt took the child to a non-Kaiser facility for the follow up surgery. Although a doctor at this facility stated that Kaiser would cover the costs of the surgery, Kaiser refused to pay the approximately $13,000 in medical bills.” See full text of the court opinion here.

Mother filed petition to modify child support and to order the father to pay medical expenses as “uninsured medical expenses.” The trial court concluded that the medical expenses should be divided between the parents. The mother appealed.

Court of appeals reversed trial court’s decision stating that “because the plain language of RCW 26.18.170 includes as “uninsured” expenses any costs “not covered by insurance” and because Kaiser (medical insurance) is not covering the disputed medical expenses, they concluded that the trial court did not err in determining that the expenses are uninsured.”

The court of appeals also found that the trial court failed to follow the procedure for modification of the order for child support by requiring the mother to share the cost of incurred uninsured medical expenses. Trial courts do not have power to change existing court for child support without finding substantial change of circumstances before modifying the order.

The court of appeals also noted that “in so ruling, we are mindful that the record does not demonstrate that, under the circumstances, the mother acted unreasonably in choosing a non-Kaiser facility to perform surgery. Therefore, we need not decide if, pursuant to the child support order, the father would have to pay all of the uninsured medical expenses if a Kaiser facility had been readily available and the mother acted unreasonable in not taking the child to it.”

The bottom line is the following:

1.       The best way to insure that both parties follow procedures of health insurance companies before seeking treatment is to make they share the expense of that treatment. If mother is the case above was responsible for even 25% of the cost of uninsured medical expenses (which is $3,250), she would have thought twice before taking the child to an out-of-network facility.

2.       If approach No. 1 is not an option or not a best option for divorcing parents, then the father should demonstrate:

a.       The mother acted unreasonably in choosing an out-of-network facility and

b.      The network facility was “readily available” to the mother

However, even if the two prong test identified above is satisfied, there is no guarantee that the court will make both parties responsible for incurred uninsured medical expenses.

On Prenuptial Agreements

I write a fair amount of pre-nuptial agreements and my clients often have difficulty with same requests from me. I decided it would be beneficial if I explain them in my blog.

Following is a list of common issues:

First, I always ask to disclose all property and debt of each party and it always surprises me when people resist the disclosure. One of many questions is “why do I need to show what I have?”

 Second, I always schedule a meeting to explain terms of the agreement and I always ask my clients to read the agreement closely and ask me questions on everything they did not understand. Some people follow that advice, majority however do not. They also tend not to listen during our meeting. That concerns me.

Third, I always recommend that their fiancé hired an independent counsel before signing the agreement. Unfortunately I cannot force them to hire one. I wish I could though.

Why am I so concerned about the items on the list? Here is why: in a recent appellate case In re the Marriage of Kaye, which was unpublished, Division One upheld trial court’s decision to invalidate the parties’ prenuptial agreement on the grounds of substantive and procedural unfairness. Meaning they said the agreement was invalid because the parties did not provide full disclosure of the assets, they did not understand terms of their agreement and the wife did not have an attorney for the agreement review and thus did not fully understand the terms of the agreement.

From legal point of view, when analyzing enforceability of prenuptial agreement, the court undertakes a two-prong test:

1.      The court determines if the agreement is substantively fair. If it is fair, then the agreement is enforceable.

2.      If the court finds that the agreement is not fair, the court checks if it was procedurally fair when executed. The term “procedurally fair” means:

a.       Both spouses made full disclosure of the amount, character, and value of the property; and

b.      The agreement was freely entered into on independent advice from counsel with full knowledge by both spouses of their rights.

 “Substantive fairness” means that the agreement fairly provides for the spouse not seeking enforcement of the agreement, including (1) the proportional benefit between the parties; (2) restrictions on the creation of community property; (3) prohibitions on the distribution of separate property upon dissolution; (4) the economic means of each spouse; (5) preclusion of common law and statutory rights to both community and separate property under dissolution; (6) limitation on inheritance; (7) prohibitions on awards of maintenance, and (8) limitations on the accumulation of separate property.

The court in our case found the agreement both substantively and procedurally unfair. On substantive unfairness the court held:

“In the context of the parties’ economic means at the time of execution, these paragraphs [the court referred to specific paragraphs in the agreement] limited the accumulation of community property and disproportionally benefited Karl. When Barbara and Karl married, Barbara owned modest property assets. Her primary source of income was the salary she earned working for a local bank. Conversely, Karl owned substantial property assets and various real estate investments, stocks, and bonds that generated his primary source of income. He had not worked for years, and there was no expectation that he would work during the marriage. By its terms, the agreement essentially ensured that Karl’s property would always remain separate. … Karl’s substantial property assets and its proceeds remained his separate property even if those assets increased in value or became commingled with community assets. Any community funds that directly benefited separate property would be deemed a gift. There was no requirement that a party be reimbursed for community or separate funds gifted to the other party.”

In addition, the agreement prevented accumulation of community property and “it ensured that Karl would retain and interest in half of Barbara’s salary or any asset obtained with the proceeds of her salary. Further, no other clause in the agreement expressly designates any assets as community property. By the agreement’s terms, the only sources of community property are wages, salaries, and employment benefits – assets and only Barbara was expected to contribute when the signed the agreement.”

The court also analyzed other provisions of the agreement and found it to be substantively unfair. “Given the parties’ economic circumstances at the time of execution, the agreement disproportionally favors Karl, restricts the creation of community property, prohibits the distribution of separate property upon dissolution, limits inheritance rights, and precludes statutory rights upon dissolution or death.”

It would have been ok, if the agreement was procedurally fair though. In this case, the court held that the agreement was procedurally unfair because (1) neither party understood what was in the agreement, and (2) Barbara did not receive independent legal advice.

 Even though a person is not required to seek legal counsel, when the agreement is substantively unfair courts routinely find that legal advice is necessary because otherwise a party is “ill equipped to identify its [agreement’s] patently unreasonable terms on her own.”

That is the main point, both parties will benefit if they have reasonable time to review proposed agreement, go over each and every provision with their attorney, and both parties have an attorney to review that agreement.

My recommendation is always to have an attorney review proposed prenuptial agreement, and always make sure that you understand all provisions of the agreement.