(concurring in the result)—I concur in the result reached by the majority and particularly because Judith Matson was not afforded a sufficient opportunity to sign the agreement intelligently and voluntarily.
It should be noted that in discussing the application of the standards set by RCW 26.09.070(3) and .080 to an otherwise "valid" prenuptial agreement the concurring opinion addresses an issue which was not raised by counsel either in the briefs or by way of argument.
To the extent that a prenuptial is to be judged by the standards which the statute provides for separation agreements that standard is contained in RCW 26.09.070(3) and sets the time of execution as the point as of which fairness is to be determined.
The shift of focus, by the concurring opinion, from fairness at the time of execution to fairness "from the time of execution" suggests an enlargement of the power of the court to modify or rewrite a contract which was fair at the time of its execution but, because of unexpected events occurring thereafter, has had unanticipated results. The existence of this power is at least debatable and is one which traditionally the court lacks.
Judge Hardyn B. Soule is serving as a justice pro tempore of the Supreme Court pursuant to Const. art. 4, § 2(a) (amend. 38).