(concurring)—I concur with the majority's analysis and result in this case. I take this opportunity, however, to express my opinion on a proposition never before considered either by this court or the commentators familiar with Washington's dissolution law; namely, that a trial court may ignore a validly executed prenuptial agreement if necessary to achieve a "just and equitable" disposition of the parties' assets and liabilities.
Support for this proposition is found in RCW 26.09.080, which provides that " [i]n a proceeding for dissolution of the marriage . . . the court shall. . . make such disposition of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors ..." (Italics mine.) The relevant factors include:
*489(1) The nature and extent of the community property;
(2) The nature and extent of the separate property;
(3) The duration of the marriage; and
(4) The economic circumstances of each spouse . . .
RCW 26.09.080(l)-(4).
Notably absent from this list of factors is the existence of a prenuptial agreement. The statute simply commands a trial court to make a "just and equitable" disposition of assets and liabilities after considering the aforementioned factors. In my opinion, the clear import of this command is that a trial court may ignore a valid prenuptial agreement if its enforcement would result in an unjust and inequitable disposition.
At first glance, this interpretation of RCW 26.09.080 might seem to conflict with the language of RCW 26.09-.070(3), which governs "separation agreements", a term which arguably encompasses prenuptial agreements. Even if this proposition is correct, the two provisions are reconcilable.
RCW 26.09.070(3) provides that a separation contract "shall be binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence . . . that the separation contract was unfair at the time of its execution." (Italics mine.) This provision does not address the validity of a separation contract in the same sense as the decisions spawned by Friedlander v. Friedlander, 80 Wn.2d 293, 494 P.2d 208 (1972), as different considerations apply.
Under Friedlander and its progeny, the validity of a prenuptial agreement turns on:
(1) whether full disclosure has been made by [the parties] of the amount, character and value of the property involved, and (2) whether the agreement was entered into fully and voluntarily on independent advice and with full knowledge by [each spouse of their] rights. . . .
Whitney v. Seattle-First Nat'l Bank, 90 Wn.2d 105, 110, 579 P.2d 937 (1978) (quoting In re Marriage of Hadley, 88 *490Wn.2d 649, 654, 565 P.2d 790 (1977)).
RCW 26.09.070(3), on the other hand, makes enforcement of a "valid" separation contract turn on whether the agreement was "unfair at the time of its execution" but only "after considering the economic circumstances of the parties and any other relevant evidence ..." This provision permits the trial court to make the fairness determination with the benefit of all available facts, including the current economic circumstances of the parties. If, from the time of its execution, the contract prevented the accumulation of community property, and one spouse neither had accumulated separate property prior to the marriage nor had the opportunity to accumulate separate property during the marriage, the prenuptial agreement could be deemed unfair at execution, even if otherwise valid, if it would result in an unfair disposition upon enforcement.
As the foregoing demonstrates, RCW 26.09.070 and RCW 26.09.080 can be construed consistently with each other. Regardless of whether a prenuptial agreement exists that is "valid" under Friedlander and its progeny, a trial court must make a disposition of property that would be just and equitable under the factors listed in RCW 26.09.080. If, with benefit of the knowledge that enforcement of the agreement would work injustice, the trial court concludes that the agreement was unfair at the time of its execution, the agreement is not binding and the trial court must make a just and equitable disposition.
This does not mean, of course, that property must be divided equally, for there may be considerations, such as the duration of the marriage, that counsel against an equal disposition. Furthermore, although the agreement would not be binding, it may serve as a valuable indication of intent, for example where one party desires to keep property within his or her family. In such a case, the trial court could award the designated property to that spouse and give the other spouse either different property or a lien against income or profits. As long as the result was just and equitable, the trial court would have great flexibility in *491shaping the contours of the final award.
Because the economic circumstances of the parties to a marriage are critical under the foregoing analysis, the preferable procedure for resolving a challenge to a prenuptial agreement is to avoid bifurcation of the challenge from the actual divorce proceeding. While the Court of Appeals may, and in this case did, accept discretionary review of a trial court's pretrial ruling on the validity of an agreement, such review is without the benefit of findings concerning the economic circumstances of the parties and the appellate courts must render a decision in a vacuum. Therefore, I disagree with the decision of the Court of Appeals to accept discretionary review of the interlocutory order.
On the other hand, an appeal of a decision affecting a prenuptial agreement after factual findings are entered in the divorce proceeding generally ensures the existence of an adequate factual record for purposes of appeal. While such a record is not critical where the reviewing court makes a threshold determination of validity under Friedlander, such a record is absolutely necessary to make the fairness determination under RCW 26.09.070(3), and regardless of the reviewing court's Friedlander determination, the fairness issue is still open.
In this case, the majority holds that the prenuptial agreement is invalid because Judith Matson "did not have an opportunity, freely and intelligently, to waive her rights to a just and equitable division of property." Majority, at 487. Accordingly, I concur. In doing so, however, I express strong doubt as to whether Judith Matson could ever waive her right to a just and equitable disposition. As stated above, I believe RCW 26.09.080 demands a just and equitable disposition regardless of the existence of a prenuptial agreement, unless one can say, after determining the effect enforcement of the agreement would have, that the agreement was fair from the time of execution. In this case, we lack an adequate factual record from which Judith Mat-son's economic circumstances can be determined. Suffice it to say that an agreement which, by its terms, would leave *492one spouse virtually penniless after 13 years of marriage can hardly be deemed fair. Accordingly, I do not believe such an agreement would be binding under RCW 26.09-.070(3).
Revelle, J. Pro Tern., concurs with Pearson, J.