Prenuptial Agreements

Often thought of as only for celebrities or the very wealthy, most couples can benefit from use of a marital agreement, meaning either a prenuptial or postnuptial agreement.
Many couples don’t know the potential financial ramifications of a future divorce or separation. A prenuptial agreement can outline each party’s future obligations to one another in the event of divorce or separation and can protect each spouse’s property and minimize the need for future litigation.

What’s the Difference Between a Prenup and a Postnup?

A premarital agreement is one signed by parties in anticipation of marriage. A postnuptial agreement is one signed after marriage and is governed by all the same laws.

Virginia Code Section 20-155 states that “married persons may enter into agreements with each other for the purpose of settling the rights and obligations of either or both of them, to the same extent, with the same effect, and subject to the same conditions, as provided in §§ 20-147 through 20-154 for agreements between prospective spouses.”

Virginia requires that both parties either be unmarried or married when the agreement is signed, meaning one spouse cannot sign pre-marriage and the other sign post-marriage.

If the signing is not conducted properly, the agreement will not be enforceable. Both spouses should sign in front of a notary public, so that validity of the signatures will be presumed.

What Other Formalities are Required?

Virginia Code Section 20-149 requires that a premarital agreement be in writing and signed by both parties. No other formalities are required and the agreement does not require consideration in order to be valid.

Although not required, a marital agreement should state whether each party was represented or advised by an attorney regarding the agreement, or whether they voluntarily signed the agreement without the advice of counsel.

The parties should exchange financial information, including all assets and liabilities, and attach documentation to the agreement showing that the exchange occurred.

What Can a Prenuptial Agreement Do?

A prenuptial agreement can define separate assets of each spouse and how separate property will be treated if it later becomes commingled. For example, if one spouse owns a house they intend to sell in order to purchase a joint home, the marital agreement can define how that spouse will be repaid for their contribution.

Parties can define how any joint property will be divided, whether it will be 50/50 or some other division. Parties can determine whether and how much spousal support will be paid, including payment terms and duration.

What Can a Prenuptial Agreement Not Do?

Parties cannot determine any future custody or visitation arrangements for minor children. Parties also cannot determine financial obligations to one another during the marriage.

How can a Prenuptial Agreement Be Invalidated?

Virginia Code Section 20-151 provides that a prenuptial agreement is not enforceable if:

  1. It was not executed voluntarily,
  2. It was unconscionable at the time it was signed, and
    • there was no fair and reasonable disclosure of the other party’s property or financial obligations, or there was no waiver of such a disclosure,

In any prenuptial agreement, it’s important that both parties have a full disclosure and exchange their financial information.

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