WHAT IS A PRENUPTIAL AGREEMENT?
A prenuptial agreement is a contract you make with your spouse regarding certain issues related to your marriage. It allows you more control and options in the event that your marriage should fail or break down. However, a prenuptial agreement can also lay out the responsibilities and obligations of each spouse. In many cases, prenuptial agreements foster clear communication between spouses. Additionally, prenups often contain provisions that cover how property division and alimony should be handled in the event of a divorce.
WHAT IS A POSTNUPTIAL AGREEMENT?
Some couples get married and then decide to draft a postnuptial agreement. This contract allows you and your spouse to predetermine how your property and assets are to be divided if you divorce. Without a prenuptial or postnuptial agreement, the division of your property and assets may be decided by the court.
WHAT ARE THE BENEFITS OF CREATING A PRENUPTIAL OR POSTNUPTIAL AGREEMENT?
Each lawyer at our firm has the knowledge, skill and experience to assist you with your pre- or postnuptial agreement. Our legal team works with you to create a comprehensive agreement. Some of the benefits of drafting a pre- or postnuptial agreement follow:
Ensures your separate property is protected
Explains what property is considered marital or community property
Saves money by reducing future conflicts
Allows you to clarify any special agreements between you and your spouse
DOES VIRGINIA LAW ACKNOWLEDGE THE VALIDITY OF PREMARITAL AGREEMENTS?
Yes. The Virginia Premarital Agreement Act (Virginia Code §§ 20-147 et seq.), first enacted in 1985, provides for the validity of pre-marital agreements.
WHAT ARE THE STATUTORY REQUIREMENTS FOR THESE CONTRACTS?
The contract must be in writing, signed by the parties, and the parties must marry.
IS THE PRENUPTIAL EFFECTIVE WHEN EXECUTED?
No. Pre-marital agreements entered into in contemplation of marriage become effective only when the parties actually marry. Thus, if the parties never marry, the contract is never effective.
WHAT HAPPENS TO THE PRENUPTIAL IF THE MARRIAGE IS FOUND TO BE VOID?
In the event of an annulment, the agreement is enforceable only to the extent necessary to avoid an unfair or inequitable result.
ARE THERE CIRCUMSTANCES WHEN PARTIES SHOULD CONSIDER HAVING A PRENUPTIAL?
Yes. When the parties are older with significant assets accrued to one or both of them, a pre-nup is a good idea. When one or both parties have children from a prior relationship, a pre-nup is a good idea. When one or both parties have acquired wealth through actively managed business or investment portfolio(s) or pension/retirement account(s) and desire to insure that the property remains separate property, this may be accomplished by a pre-nup. When one party has made promises to induce the other to relocate and/or marry the the other, a prenup is a good idea. If there is a disparity in the respective incomes of the parties, a pre-nup is a good idea. If one or both of the parties have debts going into the marriage, a prenup is a good idea. If one party is giving up, selling or disposing of property in consolidating your households, a prenup is a good idea. If one or both parties would like to change the provision made for the spouse under Virginia estate law and statutes, then a prenup is a good idea. If at any time one or both parties desire to clarify which items of property will be deemed marital and which will be deemed separate or to limit or eliminate the possibility of spousal support, a prenup is a good idea. The process of discussing these areas and arriving at agreements with respect to these areas is good for relationships. The leading cause of divorce is financial disagreements. Working through those areas before the wedding is much better than discovering after the wedding that you are not suited to each other.
Remember if you choose to marry without a prenup and subsequently find yourself facing separation and divorce, you effectively chose the provisions and allowances contained in Virginia divorce law pertaining to spousal support, property division, etc… Even if you reach a property settlement during your separation, the terms of the agreement will probably be influenced by the rights and obligations of you and your spouse as reflected in Virginia law.
WHAT TYPES OF THINGS MAY THE PARTIES DETERMINE BY CONTRACT?
Section 20-150 of the Virginia Premarital Agreement Act allows parties to contract regarding: the rights of each in the property of the other or in the property of both of them; the right to manage and control property; the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; spousal support; making a will, trust or other agreement; life insurance; choice of law and any other matter not in violation of public policy or a criminal statute. For example, the parties may not contract for the right to marry more than one spouse.
IS IT TOO LATE TO REACH AN AGREEMENT IF I ALREADY MARRIED WITHOUT A PRENUPTIAL?
Not if you and your spouse can agree upon terms. It is too late for a prenuptial agreement, but not too late for a marital agreement, provided you and your spouse can agree on terms for such an agreement. Virginia Code § 20-155 allows married people to contract to the same extent and to the same effect and subject to the same conditions as prospective spouses.
Take the time on your own to learn about legal matters in Virginia. This should never be used as a substitute for the advice of experienced counsel; this education empowers you and can help frame your discussions with your attorney.
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