A prenuptial agreement or a premarital agreement, as it’s officially called in Virginia, is a contract at its most basic form. This means that any prenuptial agreement established and enforced in Virginia must adhere to the standards of contract law. A prenuptial agreement is defined under Virginia Code § 20-148 as an agreement between engaged couples that starts on the day they marry.
A prenuptial agreement is signed by prospective spouses “in contemplation of marriage,” which means they negotiate and sign it with an eye on what will take place after they marry.
Who gets protected by a prenuptial agreement?
Many people assume that marital agreements are exclusively used to shield a wealthy spouse’s possessions from a poorer spouse, or that they are entered into because one or both parties anticipate the marriage will fail before it even begins. Another popular misconception is that prenuptial agreements are detrimental to the less fortunate spouse.
A well-crafted agreement, in fact, safeguards both parties. In a divorce, an agreement can bind a wealthier spouse to not leave a poorer spouse “out in the cold.”
When should you get a prenup?
In a nutshell, getting a prenuptial agreement is an excellent idea if:
- You or your partner have children from a prior relationship and want to make sure their inheritance is safeguarded.
- You don’t want your current or potential business to be divided in a divorce.
- You or your partner brings a significant quantity of debt into the marriage that has no direct impact on the other partner (such as student loans).
- There are certain possessions or assets that you desire to safeguard or keep apart.
- If you get divorced, you want to avoid wasting a lot of time and money in court.
While there are many additional reasons why a couple might contemplate a prenuptial agreement, these are the most popular.
So, when should you draft a prenuptial agreement? A prenuptial agreement should be drawn up by an attorney and signed and notarized by both parties long enough before the wedding day so as not to introduce undue pressure into the process.
Basic Aspects of a Prenup
Prenuptial agreements usually consist of several fundamental aspects, all of which revolve around the ownership of certain property and assets. Prenuptial agreements, for example, typically describe all of the property and assets that each individual has, as well as each person’s rights to that property should those rights be challenged in the future.
A more comprehensive prenup will also address any debts that each partner brings into the marriage, as well as who will be accountable for them if the couple divorces. Prenuptial agreements that are more detailed will cover not only the couple’s assets prior to the marriage, but will also include provisions for future assets. Finally, some prenuptial agreements include “sunset clauses,” which adjust the asset division based on how long the couple is married.
Although prenuptial agreements can also have provisions for child support and custody, they are not obliged to be followed by a family law judge. Child support is awarded for the benefit of a child, and children are not participants to a prenuptial agreement.
What happens if you don’t make a prenuptial agreement?
It may be advisable to forego a premarital agreement if you both bring equal or little to no assets or debt into the marriage, or if the concept of a prenup would generate hurt emotions or mistrust.
Just keep in mind that if you don’t have a prenuptial agreement and begin a divorce process, your assets will be divided according to the Code of Virginia law in regard to equitable distribution of marital assets in divorce.
You’ll want to get a prenup if you don’t want Virginia to interfere with the division of your estate in death or divorce.
Can you modify or terminate a prenuptial agreement after marriage?
Yes. The prenuptial agreement can be modified, revoked (invalidated), or even terminated after you and your partner have married. Both of you simply need to agree, and the new agreement must be in writing and signed.
Making a Prenup Valid and Enforceable
A prenuptial agreement must meet the following criteria in order to be valid and enforceable in court:
- Reasonable and fair
- Notarized
- Voluntarily signed (not under duress)
- Signed after both sides have given their complete disclosure.
- Both parties must sign in front of a witness (such as an attorney)
All prenuptial agreements must comply with provisions stated in the Uniform Premarital Agreement Act (UPAA). The prenuptial agreement will take effect on the day you marry as long as you meet these requirements.
Get Guidance from an Experienced Family Law Attorney
If you are planning to marry and want to learn more about Virginia Prenuptial Agreements, please contact Holcomb Law at (757) 656-1000 or fill out our contact form to schedule a consultation with an experienced family law attorney one to six months before your wedding day.
