¶1specially concurring.
¶2[¶ 21] I concur in the majority opinion, but write separately to express my concern that both the district court and the majority appear to have placed some reliance upon the husband’s claim that he told his wife, prior to their marriage, that he considered the cash he brought into the marriage not to be marital property, but, instead, his personal retirement “nest egg.” The district court stated, in its decision letter, “[t]he Defendant explained to the Plaintiff, at the inception of the marriage, that it was his intention to use his money to invest and make a living.” While recognizing no formal prenuptial agreement existed, the majority concludes the husband’s testimony supported a finding of an “ ‘understanding’ of some sort.” Without further factual development, this justice wonders whether any “understanding” existed, or whether husband’s recollection of pre-nuptial discussions are colored by the self-interest of a party to a divorce.
¶3[¶ 22] We enter dangerous territory when we base divisions of marital property on one spouse’s testimony that the other spouse had orally agreed at the time of the marriage that certain property, and apparently any increase in the value of that property, would be beyond the reach of this state’s divorce statutes should the marriage fail. Perhaps in no other arena is it more important to have the alleged agreement in writing. Determining whether an oral pre-nuptial agreement, if found to exist, is enforceable raises further questions including the applicability of the statute of frauds. DewBerry v. George, 115 Wash.App. 351, 62 P.3d 525 (2003).
¶4[¶ 23] However, I am convinced the record supports the district court’s exercise of its discretion in the equitable division of the marital property and, therefore, concur in affirming the judgment of divorce.