District of Columbia Prenuptial Agreements
Congratulations on tying the knot in Washington, D.C.! Our founding fathers would be proud. If you live in D.C., you probably know all the laws (jk) but don’t forget to brush up on DC prenup info before walking down the aisle.
Here’s some information you need to know about D.C. prenups.
D.C. courts refer to a prenuptial agreement as a “premarital agreement.” A premarital, antenuptial, and prenuptial agreement are synonymous; it means a legal contract drafted between two spouses before marriage. A premarital agreement is only valid after the marriage takes place. The D.C. premarital agreement statute and case law outline the rules and requirements for a valid agreement.
A premarital agreement in D.C. may include alimony modifications, property division, insurance policies, and more. On the other hand, a premarital agreement in D.C. cannot limit or contract around child support, child custody, or matters violating public policy.
Check out the D.C. Premarital Agreement Statute here.
How to create a D.C. Prenup
The contract must be in writing
The terms must be lawful
Signatures from both parties (HelloPrenup recommends initialing each page, and having your signatures notarized!)
Signed voluntarily (without being under duress, intimidation, deceit, etc.)
Notarized signatures (no, you should not skip this step!)
Full disclosure of all financial assets and income *Do not skimp on this*
Cannot include child custody or child support
No incentives to commit illegal acts
No terms that violate public policy
No unfair, unjust, or deceptive terms
No terms that violate public policy
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The landmark prenuptial agreement case in D.C.
The Burtoff case from 1980 remains the standard for evaluating the validity of a prenup in D.C. In that case, Husband and Wife signed a prenup that set lump sum amounts of alimony in the event of divorce: $10,000 if the marriage lasted less than a year; $25,000 if the marriage lasted one to three years; $35,000 if the marriage lasted longer than three years; and $50,000 if Husband were to die while they were still married.
Wife wanted to throw out the prenup in the divorce proceedings, so she contended that prenups setting alimony should be declared invalid because it goes against public policy. The court disagreed with Wife and declared that prenups considering a divorce and setting alimony should not be nullified.
Instead, the court stated that prenups should be scrutinized more carefully than a regular contract because of the contracting parties’ close relationship. Keep in mind that this was back in 1980 before D.C. adopted the UPAA.
The court went on to explain how they will scrutinize prenups more carefully. First, it will review fairness; second, it will review whether spouses signed the agreement voluntarily and fully understand the other spouse’s financials. In the Burtoff case, the court determined the prenup was fair, Wife signed it voluntarily, and she had adequate knowledge of Husband’s financials.
Pensions and Prenups
Husband and Wife signed a prenup that stated that each spouse would keep their own separate property in the event of a divorce. At the time of the divorce, Wife requested her share of Husband’s pension, even though it was considered his separate property. She argued that under ERISA (Employment Retirement Income Security Act), there are protections for the former spouses of pension owners. She should have her fair share of this in the property distribution.
The result? The court disagreed with Wife; it decided that in D.C. if you waive your right to your spouse’s pension in a prenup, you cannot later rely on the protections in ERISA to receive a portion of the pension. In other words, if you agree in your prenup that you won’t have a right to split up your spouse’s retirement money, ERISA will not later “save” you with its former-spouse protections. The domestic relations laws of D.C. will uphold the prenup and not give you a portion of the pension.
Separate vs. Marital Property
Property is either considered separate property or marital property. Marital property is split up in the divorce; separate property is not. Generally, separate property in D.C. is property acquired before the marriage or during the marriage by gift or inheritance. On the other hand, marital property is property acquired during the marriage. For example, let’s say you purchase a car for yourself during the marriage; this will be considered marital property and may be divided in the divorce, even if it was intended to be separate. If this framework is not to your liking, you should specify it clearly in a legal document, such as a prenuptial agreement.
Official term for spousal support in D.C.: Alimony
Alimony is the financial support ordered by a court for one spouse to pay the other. Alimony may be ordered permanently, short-term, or temporarily during a pending divorce. A D.C. judge may find alimony appropriate when one spouse lacks sufficient means to meet their needs and cannot find employment, and the other spouse has the means to pay it. Some factors a judge will consider are the length of the marriage, the ability of the needing spouse to become self-supporting, the standard of living during the marriage, each spouse’s age, and more. If this framework is not to your liking, you should specify it clearly in a legal document, such as a prenuptial agreement.
An interesting consideration of mental health and alimony
A D.C. Court of Appeals presided over a case that questioned whether Wife’s mental health struggles with depression were enough to require Husband to pay alimony. In determining whether alimony is appropriate, D.C. courts evaluate a list of factors to make this decision: the ability of the needing spouse to become self-supporting, the length of the marriage, the ages and health of the spouses, their respective financial positions, their property ownerships, the ability for one spouse to pay it, the standard of living in the marriage, and more. You can read the full list of factors here.
Wife argued that her depression seriously affected her ability to obtain a self-supporting income. The court acknowledged that while depression could be a potential way to require alimony in some cases, that is not the case for her.
The court considered all the factors, including that she was already able to hold down two part-time jobs and had $250,000 in liquid assets.
What’s the lesson here? There’s an unclear answer as to whether alimony would be awarded in your case. The courts in D.C. have broad discretion to decide on whether alimony is appropriate or not. Thus, the best way to avoid leaving this decision up to the courts is to put a prenuptial agreement in place regarding alimony.
Official term for divorce in D.C.: Divorce
Divorce occurs when two people, who have been legally married, begin the court process to end the marriage. D.C. is a no-fault jurisdiction, meaning that you can’t argue that your spouse “did something wrong” like adultery or abuse to end the marriage. In D.C., you must show that you and your spouse have lived separately for a specific amount of time. There are only two options: (1) There has been mutual and voluntary separation and you have been living separately for at least six months; or (2) Whether it’s mutual and voluntary or not, you have been living separately for at least one year.
How to end a marriage in D.C.
There are two ways to end a marriage in D.C.: annulment or divorce. An annulment ends a marriage that was invalid from the start. Grounds for annulment include bigamy, underage parties, related parties, a mentally incompetent spouse, or fraud. You may also file for legal separation, which does not end the marriage but achieves almost everything a divorce would, such as determining child custody, property division, and maintenance.
Only one party needs to begin the process of ending a marriage (but don’t get us wrong, it takes two to make it work!) If one party wants to end the marriage, it is within their sole right, and the other non-participating party does not have to agree to begin the process. If a non-participating spouse does not partake in the proceedings, a default judgment will be entered and force the divorce to proceed.
Each state has residency requirements that must be fulfilled before you can divorce in that state. In D.C., these are the residency requirements:
- You or your spouse must be a resident of D.C. for at least six months before filing for divorce.
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