In Re The Marriage Of: Barbara G. Kaye, Res. And Karl H. Kaye, Jr., App. ( 2014 )


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  •           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    In re the Matter of the Marriage of              NO. 71017-6-1                      sr
    ©
    a
    —t
    BARBARA G. KAYE,                                 DIVISION ONE
    t
    en
    Respondent,
    and
    en
    KARL H. KAYE, JR.,                               UNPUBLISHED OPINION                          ©
    Appellant.                   FILED: October 6, 2014
    Lau, J. — This case involves a marital dissolution action involving Karl and
    Barbara Kaye.1 After a bench trial, the court invalidated the parties' prenuptial
    agreement on grounds of substantive and procedural unfairness, determined the
    marriage was defunct when Barbara moved out of the home, and ordered Barbara to
    pay three months of spousal maintenance. Karl appeals, arguing the prenuptial
    agreement's validity, the marriage's defunct date based on service of process date, and
    insufficient evidence for the maintenance award. Because the trial court properly
    concluded both substantive and procedural unfairness renders the agreement invalid,
    We refer to the parties by their first names to avoid confusion.
    71017-6-1/2
    we affirm that determination. But because the court misapplied the legal standard for
    determining the date the marriage was defunct, we reverse the court's property
    distribution and maintenance award and remand for further proceedings on the existing
    factual record and consistent with this opinion. We affirm the decree of dissolution in
    part and reverse and remand in part.
    FACTS
    The main facts are undisputed. Karl and Barbara Kaye married on July 12, 1984.
    Before the wedding, Karl presented Barbara with a prenuptial agreement. Barbara and
    Karl signed the prenuptial agreement two days before the wedding.
    At the time of the agreement, Barbara disclosed a savings account, stock shares,
    real estate, and other personal property totaling approximately $111,900. She also
    earned $25,000 per year working for a local bank. Karl disclosed substantial assets
    primarily comprised of stocks and bonds and two waterfront Bainbridge Island rental
    properties. Karl's stocks and real estate assets, combined with life insurance policies
    and other personal property, totaled over $1 million. Karl has been unemployed since
    1979. There was no expectation that he would look for work at the time he and Barbara
    married.
    The prenuptial agreement mainly protected the parties' separate property even if
    it increased in value during the marriage or became commingled with community
    assets. For instance, paragraph 6 of the agreement provides:
    The assets presently owned by the parties . . . shall be and remain the separate
    property of each of the respective parties .... In addition thereto, any addition or
    enhancement in the value of the separate property of either party shall remain
    the separate property of each of the parties. Any additions to or enhancement in
    the value of separate property of either part which occurs due to major structural
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    improvements to said property shall be and remain the separate property of the
    party owning such separate property. In addition, any enhancement in the value
    of separate property . . . and the proceeds therefrom due to mere appreciation
    shall be and hereby remains the separate property of the party owning such
    separate property which has appreciated. In the event any community funds are
    utilized for the direct benefit of any separate property of either party, such
    community funds so utilized shall be deemed a gift of community property to the
    party owning the separate property benefited by such community funds.
    Paragraph 6 also states, "[A]ssets acquired through the proceeds of loans secured by
    separate property shall be the separate property of the party whose property secured or
    was collateral for the loan." The clause meant that if the community received a loan, the
    party owning the property that secured the loan controlled the proceeds, but the
    community was liable for the debt.
    The agreement also ensured that any proceeds derived from separate property
    would remain separate, while proceeds from wages or salaries became community
    property. Paragraph 7 states, "[A]ssets acquired during [the] marriage which are the
    proceeds of separate property shall retain the separate ownership and character of the
    assets from which said proceeds were originally derived." However, "any wages,
    salaries or other employment benefits attributable to the labor of either of them during
    such time that they shall be living together. .. shall be deemed community property."
    Finally, the agreement waived the parties' rights to certain claims upon marriage
    dissolution or death of either party. Paragraph 8 provides:
    [l]n the event of a dissolution of their marriage . . . each of them expressly waives
    any right or interest that he or she may have or subsequently acquire in the
    separate property of the other. In addition, ifthe separate property contains any
    community property investment or lien therein which is to be divided by reason of
    marriage dissolution, such separate property shall nevertheless be awarded to
    the party who owned said property as his or her own separate property
    notwithstanding any community investment therein.
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    Paragraph 9 contains similar provisions in the event that one of the parties died:
    Upon the death of either party, it is hereby contemplated and agreed by them
    that neither of them will claim any interest in the separate properties as defined
    herein of the other.... In addition, if any separate property of the deceased
    party contains any community investment, over which the surviving party would
    have the power to will one-half thereof, it is hereby expressly agreed between the
    parties that said separate property shall be awarded to the deceased party's
    heirs at law, or by will, whichever is applicable notwithstanding said community
    investment.... The parties also expressly waive any right he or she may have
    to claim a homestead and/or family allowance out of the separate real property of
    the other party, notwithstanding a potential community investment therein.
    These clauses eliminate either party's potential claims to the other's separate property
    in the event of dissolution or death even if they invested community assets in that
    separate property.
    The parties' trial testimony indicates that neither party fully understood the
    agreement's consequences when they signed it. For instance, when Karl was asked
    whether he was aware that paragraph 6 of the agreement meant that any community
    funds spent on his separate property was deemed a gift to him, Karl responded, "I am
    now, yes." Report of Proceedings (July 8, 2013) (RP) at 188. Later, counsel asked Karl
    whether he understood that if the community received a loan secured by his separate
    property that the loan proceeds were also a gift to him:
    Q. Well, it's in the prenuptial agreement that your attorney wrote. And
    you didn't understand it?
    A. If I—the way you're interpreting it I guess I didn't.
    RP at 193-94. Karl also expressed confusion about other portions of the agreement:
    Q. At the time you never thought about whether it was fair or not?
    A
    I didn't know anything about details as far as these paragraphs go. I had
    nothing to do with drafting the logic of it. Ididn't know the logic of it. I've never
    seen a prenuptial agreement in my life up to that point....
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    I didn't know anything special about these gifts and other things. I didn't
    know that concept. I didn't—it wasn't part of my thinking.
    Q. Ifyou'll look at paragraph 9 of the agreement, sir, were you aware that
    that paragraph was in there and what it meant?
    A. I—I probably wasn't—yeah. When I signed this I read this thing too,
    you know, just like Barb did, so I was aware of it at that point in time.
    Q. Did you know what it meant?
    A. I don't know what it means now.
    RP at 201-03.
    Barbara was indifferent about the agreement when she signed it. She testified
    that when Karl first gave her the agreement, he said it was a "normal, standard"
    agreement. RP at 124. Karl denied the statement. She also testified that Karl told her
    "not to worry about [the agreement]." RP at 123. As she understood it, "[the
    agreement] didn't matter because he said he had enough money to take care of
    whatever he needed to take care of. . . there wouldn't be any requirement for me to gift
    money to fix the house or do anything with the house. ... He had his, I had mine. It
    was going to be separate." RP at 128. Given this understanding of the agreement, she
    "didn't care" about certain details in the agreement, such as the accuracy of asset
    disclosures. RP at 113.
    Barbara said she read the agreement, understood she could talk to a lawyer,
    considered it, but decided against it. She recalled receiving the agreement
    approximately two weeks before the wedding. Karl thought it was "more like a month."
    RP at 148.
    After 27 years of marriage, Barbara moved out of their Bainbridge Island
    residence on March 25, 2011. From March 31, 2011, through April 12,2012, Barbara
    and Karl attended couples therapy twice a month with a psychologist. Karl suggested
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    counseling, with the hope of reconciling their marriage. He believed the marriage could
    be saved until Barbara served him with divorce papers in June 2012, over a year after
    they started counseling.
    Following a bench trial, the trial court found the prenuptial agreement both
    substantively and procedurally unfair at the time it was signed. "Substantively, the
    agreement must make adequate provision for the spouse not seeking enforcement and
    it does not. The agreement is completely one-sided and was unfair at the time it was
    entered into." The court also found the agreement procedurally unfair because neither
    party "understood the significance of the Agreement when it was entered into. . ..
    [N]either party entered into the Agreementwith full understanding of its provisions or
    their significance." Further, because Barbara did not receive independent legal advice,
    she "did not have full knowledge of her rights [and] the legal consequences of the
    agreement."
    The trial court also found their marriage defunct as of March 23, 2011—the date
    Barbara moved out of their house. As a consequence, the court characterized
    Barbara's stock and the subsequently accumulated value of her 401(k) as her separate
    property rather than community property.
    The trial court also awarded Karl three months of spousal maintenance. The
    court explained this award by noting Karl's extended unemployment, his substantial
    separate property, including his Bainbridge Island residence valued at $1.2 million,2 and
    Barbara's limited separate assets and inability to pay for her own expenses and save for
    2 Karl sold his other Bainbridge Island rental properties in 2003.
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    her retirement. Therefore, the maintenance award was intended to sustain Karl until he
    could "do something" to provide for himself with his separate assets. RP at 337.
    ANALYSIS
    Standard of Review
    Whether a prenuptial agreement is substantively fair is a question of law
    reviewed de novo "unless there are factual disputes that must be resolved in order for a
    court to interpret the meaning of the contract." In re Marriage of Bernard, 
    165 Wash. 2d 895
    , 902, 
    204 P.3d 907
    (2009). Similarly, whether a prenuptial agreement is
    procedurally fair "involves mixed issues of policy and fact, and accordingly review is de
    novo but undertaken in light of the trial court's resolution of facts." 
    Bernard. 165 Wash. 2d at 903
    . "Findings of fact are reviewed under a substantial evidence standard, defined
    as a quantum of evidence sufficient to persuade a rational fair-minded person the
    premise is true." Sunnvside Vallev Irr. Dist. v. Dickie. 
    149 Wash. 2d 873
    , 879, 
    73 P.3d 369
    (2003).
    Enforceability of Prenuptial Agreement
    This court undertakes a two-pronged analysis to determine whether a prenuptial
    agreement is enforceable. First, "the court determines whether the agreement is
    substantively fair, specifically whether it makes reasonable provision for the spouse not
    seeking enforcement." 
    Bernard, 165 Wash. 2d at 902
    . If the court finds that the
    agreement contains "a fair and reasonable provision for the spouse not seeking its
    enforcement, the analysis ends; the agreement is enforceable." 
    Bernard, 165 Wash. 2d at 902
    .
    71017-6-1/8
    Second, if the court finds that a prenuptial agreement is substantively unfair, it
    may nevertheless enforce the agreement if it was procedurally fair when executed. ]n
    re Marriage of Matson. 
    107 Wash. 2d 479
    , 483, 
    730 P.2d 668
    (1986). An agreement is
    procedurally fair if (1) the spouses made a full disclosure of the amount, character, and
    value of the property involved and (2) the agreement was freely entered into on
    independent advice from counsel with full knowledge by both spouses of their rights.
    
    Matson, 107 Wash. 2d at 483
    . For both substantive and procedural fairness, appellate
    courts must limit their analysis to the circumstances surrounding the execution of the
    agreement rather than the parties' circumstances throughout the marriage or at the time
    of enforcement. 
    Bernard, 165 Wash. 2d at 904
    . "The burden of proof lies with the spouse
    seeking enforcement." 
    Bernard, 165 Wash. 2d at 902
    (citing Friedlander v. Friedlander, 
    80 Wash. 2d 293
    , 300, 
    494 P.2d 208
    (1954)). Here, the burden rests on Karl.
    Substantive Fairness
    For substantive fairness, courts have considered several factors for
    determining whether an agreement fairly provides for the spouse not seeking
    enforcement, 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 upon
    dissolution, (6) limitations on inheritance, (7) prohibitions on awards of maintenance,
    and (8) limitations on the accumulation of separate property. See, e.g., 
    Bernard, 165 Wash. 2d at 905
    ("[A]n agreement disproportionate to the respective means of each
    spouse, which also limits the accumulation of one spouse's separate property while
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    precluding any claim to the other spouse's separate property, is substantively unfair.");
    
    Matson, 107 Wash. 2d at 486
    (holding that a prenuptial agreement was "grossly
    disproportionate" where all value, income, and earnings from separate property would
    remain separate upon dissolution); In re Marriage of Foran, 
    67 Wash. App. 242
    , 249-50,
    
    834 P.2d 1081
    (1992) ("Peggy waived any and all equitable liens which the marital
    community might otherwise acquire by virtue of the expenditure of community funds or
    community labor on or for the benefit of James' separate estate. Peggy also waived all
    of her statutory rights as a surviving spouse in the event that James should predecease
    her. She also waived any right to make a claim against James' separate estate in the
    event of a marital dissolution. . . . There was no contractual requirement that the marital
    community be reimbursed for the value of any financial contributions and personal
    services it might contribute to James' separately owned businesses.").
    In this case, paragraphs 6, 7, 8, and 9 of the prenuptial agreement implicate
    several of these factors. For instance, paragraph 6 of the agreement quoted above
    states that separate property shall remain separate even if its value increases or it is
    comingled with community funds. It also states that the owner of property securing a
    community loan controls the proceeds of the loan. Paragraph 7 states that the
    proceeds of separate property remain separate. But the proceeds from salaries or
    wages of either party's labor is community property.
    In the context of the parties' economic means at the time of execution, these
    paragraphs limited the accumulation of community property and disproportionately
    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
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    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. Under paragraphs 6 and 7 of the agreement, 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. We previously invalidated a similar prenuptial agreement for
    the same reason. 
    Foran, 67 Wash. App. at 250
    ("There was no contractual requirement
    that the marital community be reimbursed for the value of any financial contributions
    and personal services it might contribute to [separate property].").
    Karl argues that the agreement did not preclude the accumulation of community
    property because of paragraph 7(C), which provides, "[A]ny wages, salaries or other
    employment benefits attributable to the labor of either of them . . . shall be deemed
    community property." We are unpersuaded. Barbara was the only wage earner at the
    time they signed the agreement. The parties understood that Karl would never be
    gainfully employed during the marriage. Under these circumstances, paragraph 7
    prevented the accumulation of community property. It ensured that Karl would retain an
    interest in half of Barbara's salary or any assets 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
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    property are wages, salaries, and employment benefits—assets that only Barbara was
    expected to contribute when they signed the agreement.
    Karl claims that a provision in the agreement "treats contributions of separate
    property to the community as gifts." Br. of Appellant at 10. We are unpersuaded. The
    agreement contains no such provision. Most of the agreement ensures that separate
    property remains separate. See, e.g., paragraph 7(B) ("The parties agree that the
    commingling of their separate property shall not change the character and/or ownership
    of said separate property."). The agreement does retain the parties' ability to receive
    gifts from one another. But it does not require that any gifts be made to the community.
    While Karl contemplated contributing separate property to the community at the time of
    execution, no provision in the agreement required any contribution from his separate
    property. It expressly treated salaries, wages, and employment benefits as sole
    community property. Even though Karl may have contributed some separate property
    to the community during the marriage, we consider only the circumstances surrounding
    the execution of the agreement, not what transpired afterward. 
    Bernard, 165 Wash. 2d at 904
    .
    The agreement also precludes any equitable liens or statutory claims against
    separate property in the event of dissolution or death of a party. Paragraphs 8 and 9
    ensure that the parties waive any right or interest in the other party's separate property
    in the event of dissolution or death, even if that separate property includes a community
    investment. Courts have consistently invalidated prenuptial agreements with similar
    waivers. See, e^, 
    Bernard, 165 Wash. 2d at 905
    ("[The agreement] made provisions for
    Gloria disproportionate to the means of Thomas, and limited Gloria's ability to
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    accumulate her separate property while precluding her common law or statutory claims
    to Thomas's property."); 
    Foran, 67 Wash. App. at 250
    (invalidating a prenuptial agreement
    containing waivers as to any equitable lien and statutory rights upon dissolution or
    death).
    Given the parties' economic circumstances at the time of execution, the
    agreement disproportionately 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. We conclude, as a matter of
    law, that the agreement was substantively unfair when itwas signed. In Foran, we
    invalidated a prenuptial agreement containing the same factors present here. 
    Foran, 67 Wash. App. at 250
    -51.
    Karl nevertheless argues that the agreement is substantively fair. We are not
    persuaded. First, Karl alleges that no substantial evidence supports the trial court's
    finding that "[t]he agreement is completely one sided and was unfair at the time it was
    entered into." This "finding" is a legal conclusion, not a finding offact. "When findings
    offact in reality pronounce legal conclusions, they may be treated as such." State v.
    Niedergang, 
    43 Wash. App. 656
    , 659, 
    719 P.2d 576
    (1986). For the reasons discussed
    above, the trial court properly concluded the agreement was "one-sided" and unfair
    when signed.
    Karl next argues that the trial court "erroneously focused on post nuptial
    circumstances as they developed as oftrial. . . rather than when executed." Br. of
    Appellant at 18. Karl relies on a portion of the trial court's oral decision describing the
    agreement as
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    a one-way street wherein the wife ended up liquidating all of her separate
    property, put all of her community earnings to service a debt on this separate
    property house, along with obviously the other community debt, ended up having
    no retirement and ostensibly no interest in the equity in the house, yet was stuck
    with the mortgage liability and her name on the mortgage.
    RP (July 10, 2013) at 319-20. Karl claims that this shows the trial court misapplied the
    legal test by focusing on the circumstances of the marriage rather than the
    circumstances surrounding the execution of the agreement. See 
    Bernard, 165 Wash. 2d at 904
    (appellate courts must limit their analysis to the circumstances surrounding the
    execution of the agreement rather than the parties' circumstances throughout the
    marriage or at the time of enforcement).
    But the court's comments have "no final or binding effect, unless formally
    incorporated into the findings, conclusions, and judgment." Ferreev. Doric Co., 
    62 Wash. 2d 561
    , 567, 
    383 P.2d 900
    (1963). Second, the court properly concluded that the
    agreement was unfair "at the time it was entered into." "To the extent its oral rulings
    conflict with its written order, a written order controls over any apparent inconsistency
    with the court's earlier oral ruling." State v. Skuza, 
    156 Wash. App. 886
    , 898, 235 P.3d
    842(2010).
    Procedural Fairness
    A substantively unfair prenuptial agreement can be enforced only if it was
    procedurally fair. 
    Bernard, 165 Wash. 2d at 905
    . An agreement is procedurally fair if
    (1) the spouses made a full disclosure of the amount, character, and value of the
    property involved and (2) the agreement was freely entered into on independent advice
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    from counsel with full knowledge by both spouses of their rights. 
    Matson, 107 Wash. 2d at 483
    .
    The trial court ruled that the agreement's asset disclosures were sufficient.3 It
    found, however, 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.
    Karl challenges two factual findings underlying the trial court's conclusion that the
    prenuptial agreement was procedurally unfair. This court will uphold a trial court's
    factual findings if they are supported by substantial evidence. Sunnvside 
    Vallev 149 Wash. 2d at 879
    . First, Karl challenges the court's finding that "neither party entered into
    the Agreement with full understanding of its provisions or their significance." However,
    this finding is supported by substantial evidence summarized above.
    Second, Karl challenges the court's finding that Barbara had only two weeks to
    review the prenuptial agreement and seek independent legal advice. This finding is
    supported by substantial evidence. Barbara testified that she thought she received the
    agreement two weeks before the wedding. Karl testified that he thought "it was more
    like a month." RP at 148. Karl's argument relates to matters of credibility. We defer to
    the trier of fact for purposes of resolving conflicting testimony and evaluating the
    3 Barbara disputes this finding on appeal, arguing that Karl violated his duty of
    good faith and candor by failing to disclose the value of certain assets. We decline to
    address whether Karl failed to properly disclose the value of his contingent interests.
    Barbara failed to cross appeal and therefore cannot dispute the trial court's findings or
    assign error. See Amalgamated Transit Union Local 587 v. State, 
    142 Wash. 2d 183
    , 202,
    
    11 P.3d 762
    (2000).
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    persuasiveness of the evidence and credibility of the witnesses. Boeing v. Heidv, 
    147 Wash. 2d 78
    , 87, 
    51 P.3d 793
    (2002).
    Karl also argues that Barbara's decision to forgo independent legal advice does
    not defeat procedural fairness. We consider several factors when determining whether
    a prenuptial agreement was freely entered into with full knowledge of the parties' rights,
    including "[t]he bargaining positions of the parties, sophistication of the parties,
    presence of independent advice, understanding of the legal consequences and rights,
    and timing of the agreement juxtaposed with the wedding date . . . ." 
    Matson, 107 Wash. 2d at 484
    . Karl correctly notes that independent counsel is not a prerequisite for
    procedural fairness. See, e^, In re Estate of Crawford. 
    107 Wash. 2d 493
    , 496, 
    730 P.2d 675
    (1986) ("There is no absolute requirement of independent counsel."); see also
    Kellar v. Estate of Kellar, 
    172 Wash. App. 562
    , 588, 
    291 P.3d 906
    (2012) ("First, we
    cannot say that effective independent counsel is required when independent counsel is
    not even required in all cases."). However, courts have found prenuptial agreements
    procedurally unfair when the party challenging enforcement received no advice from
    independent counsel and the agreement was patently unreasonable. See, e.g.,
    
    Crawford, 107 Wash. 2d at 497
    ("Here the agreement was patently unreasonable.
    Independent counsel was required."); see also 
    Foran, 67 Wash. App. at 256-57
    (holding
    that independent counsel was required because the agreement was patently
    unreasonable).
    As in Crawford and Foran, the agreement here is patently unreasonable. It
    allows Karl to enrich his separate property with community funds without requiring that
    he reimburse the community or otherwise contribute to the community. Therefore, even
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    though Barbara chose not to seek legal advice, the trial court correctly found that the
    agreement was procedurally unfair because Barbara was ill equipped to identify its
    patently unreasonable terms on her own. See 
    Foran, 67 Wash. App. at 256
    ("That the
    Crawford prenuptial contract was patently unreasonable is something that Genevieve
    Crawford was ill equipped to determine on her own. Peggy Foran was similarly ill
    equipped to make that determination . . . .").
    Karl's attempt to distinguish this case from others where the prenuptial
    agreement was introduced shortly before the wedding is unpersuasive. See, e^.,
    
    Matson. 107 Wash. 2d at 486
    (finding procedural unfairness where the agreement was
    introduced three days before the wedding). He contends that because theirwedding
    lacked the traditional formality of some weddings, Barbara did not have to face the
    difficult choice of either signing an agreement she did not understand or postponing a
    significant life event. The amount oftime between when the parties review the
    agreement and the wedding date is only onefactor. Courts have invalidated prenuptial
    agreements even where the party had more than a few days to review the document. In
    Bernard, for example, the court found that the prenuptial agreement was procedurally
    unfair even though the party challenging its validity received it 18 days before the
    wedding. 
    Bernard, 165 Wash. 2d at 899
    .4
    Whether the agreement was procedurally fair depends on whether the
    agreement was freely entered into on independent advice from counsel with full
    knowledge by both spouses of their rights. 
    Matson, 107 Wash. 2d at 483
    . Substantial
    4The court invalidated the agreement because, although Gloria had an accurate
    draft 18 days before the wedding, her attorney did not receive an accurate draft until 3
    days before the wedding. Bernard, 165Wn.2d at 899-900.
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    71017-6-1/17
    evidence supports the trial court's finding that neither party understood their rights under
    the agreement. Further, the agreement is not procedurally fair simply because Barbara
    had the opportunity to seek independent counsel but chose not to. Here, independent
    counsel was required because the agreement was patently unreasonable.
    The Marriage Defunct Date
    Karl challenges the trial court's conclusion that the marriage was defunct when
    Barbara moved out of their Bainbridge Island residence on March 23, 2011. The date of
    legal separation implicates the community value of Barbara's 401 (k) and whether the
    restricted Columbia Bank stock is her separate property.
    "When spouses or domestic partners are living separate and apart, their
    respective earnings and accumulations shall be the separate property of each."
    RCW 26.16.140. Mere physical separation is not enough for the statute to apply; the
    marriage must be "defunct." Rustad v. Rustad, 
    61 Wash. 2d 176
    , 180, 
    377 P.2d 414
    (1963). For a marriage to be defunct, there must be "some conduct on the part of both
    spouses" demonstrating that the marriage is over. Seizer v. Sessions, 
    132 Wash. 2d 642
    ,
    658, 
    940 P.2d 261
    (1997):
    A marriage is considered "defunct" when both parties to the marriage no longer
    have the will to continue the marital relationship. In other words, when the
    deserted spouse accepts the futility of hope for restoration of a normal marital
    relationship, or just acquiesces in the separation, the marriage is considered
    "defunct" so that the "living separate and apart" statute applies.
    
    Seizer, 132 Wash. 2d at 658
    (quoting In re Marriage of Short, 
    125 Wash. 2d 865
    , 871, 890
    P.2d 12(1995)).
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    71017-6-1/18
    Contrary to Rustad and Seizer, the trial court considered only Barbara's conduct
    when it determined the marriage was defunct on March 23, 2011, when she moved out
    of their house.5
    Because the trial court erred when it found that the marriage was defunct on
    March 23, 2011, we reverse both the property distribution and maintenance award. We
    remand for further proceedings, based on the existing factual record, to determine the
    correct date the marriage became defunct.6 Accordingly, we need not address the trial
    court's evaluation or characterization of Barbara's 401 (k) or stocks.
    CONCLUSION
    For the reasons discussed above, we affirm the trial court's determination to
    invalidate the prenuptial agreement. But because the court misapplied the legal
    standard for determining the date the marriage was defunct, we reverse the property
    distribution and maintenance award and remand for further proceedings on the existing
    5 In defense of the trial court's finding, Barbara relies heavily on In re Marriage of
    Pletz, 
    71 Wash. App. 699
    , 
    861 P.2d 1080
    (1993). However, we do not consider the
    relevance of that case because the Supreme Court ordered the opinion be depublished.
    In re Marriage of Pletz, 
    123 Wash. 2d 1026
    , 
    873 P.2d 489
    (1994).
    6 We are not certain on remand what, if any, impact the defunct marriage date
    might have on the court's characterization and overall distribution of the parties'
    property, including Barbara's 401 (k) and stocks and the maintenance award. One of
    the statutory factors a court must weigh to determine the maintenance award includes
    the parties' resources, including separate or community property. Thus, we decline to
    address Karl's challenge to the maintenance award.
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    71017-6-1/19
    factual record and consistent with this opinion. We affirm in part and reverse and
    remand in part.
    WE CONCUR:
    k<^- ^.
    •19-