How Does a Prenuptial Agreement Work?

by | Jul 17, 2023 | Divorce and family law

Prenups are legal documents for securing financial stability. How does a prenuptial agreement work? Learn more in this Ashwell & Ashwell PLLC guide.


Prenuptial Agreements in Virginia


We buy insurance to plan for the worst, such as a serious car accident or house fire. While there is no such thing as “divorce insurance,” there is another way someone planning to get married can protect themselves in case their future marriage does not work out.

One issue that often comes up before the big day is whether or not to get a prenup or a prenuptial agreement.

A prenuptial agreement, also known as a premarital agreement, is a contract between two soon-to-be-married people. (There is a version for an already married couple called a postnuptial agreement.) They can use it to plan many aspects of divorce ahead of time to save considerable time, expense, and stress if divorce ever arises.

In Virginia, prenups are valid, but it’s important to understand the requirements and limitations.


Important Facts About Prenuptial Agreements


A prenup must be in writing and signed by both parties before marriage. Oral agreements are not enforceable. Both parties should have their own lawyer to ensure the agreement is fair and valid.

Although a prenuptial agreement can cover different issues, certain things can’t be included. For instance, child custody and child support can’t be determined in a prenup. Any provisions that go against public policy or state laws are also not enforceable. Additionally, there cannot be any provisions that encourage or promote divorce.

Finally, it’s important to note that a prenup agreement only applies to property that is considered separate, not marital property. Separate property includes any property that either spouse owned before the marriage. On the other hand, marital property is any property acquired during the marriage.

The prenup can outline how separate property will be divided in a divorce but cannot determine how marital property will be divided. Virginia’s equitable distribution laws will determine the division of marital property.


Who Should Get a Prenup?

Getting a prenup doesn’t mean you are expecting your marriage to end. It is, in fact, an instrument to minimize conflict and avoid litigation if the marriage ends due to the divorce process or death.

As a legal document, a prenup can detail each person’s rights to assets and responsibilities for debts. Although every situation is unique, there are certain scenarios in which getting a prenup agreement would be a smart move. A prenup may be considered in the following scenarios:

  • If one or both parties have children from a previous marriage.
  • If one or both spouses are bringing significant assets into the marriage.
  • If one or both parties have debts incurred before the marriage.

For example, you can use a prenup to ensure your children from a previous marriage will get everything you have set aside for them. If there is no prenup and the divorce process is initiated, your assets will be divided according to the Virginia state law regarding equitable distribution. That means the court will have the authority to allocate the property between the parties.

Moreover, a prenuptial agreement can address who will be accountable for debts one spouse incurred before the marriage.


What Can Virginia Prenuptial Agreements Include?


Virginia law allows you to include the following in a prenuptial agreement:

  • Division of marital assets.
  • The terms of spousal support, if any.
  • Ownership rights and disposition of the death benefit from a life insurance policy.
  • Estate planning tools, such as a will or trust, to carry out the agreement’s terms.

Note that the prenup can concern itself with financial and property matters only. You can include provisions for child custody and child support, but those are not enforceable in court. If you or your ex disputes one of these provisions and the matter goes to court, the judge will not give them much consideration — unlike provisions having to do with, say, what to do about the house.

Additionally, a prenuptial agreement can outline spousal support or alimony in the event of a divorce. However, courts can still look at factors such as the marriage’s length, each spouse’s earning potential, and other factors when determining spousal support.


When a Prenup Is Not Allowed


Like most contracts, courts will not enforce a prenuptial agreement if one of the following is true:

  • One of the parties did not agree to it voluntarily, e.g., they signed it under duress, or
  • The agreement is unconscionable at the time of execution, and before execution, the party did not receive a fair and reasonable financial disclosure of the other party’s financial and property obligations and did not voluntarily waive, in writing, their right to disclosure.

In other words, it may be invalidated if one spouse can prove that the prenup was signed under duress, coercion, or fraud. Additionally, if the agreement is found to be significantly unfair to one party, a court may also choose to invalidate it.

Though you doubtlessly trust your future spouse, both of you should consult your own attorney before signing a premarital agreement. Your lawyer can negotiate terms and ensure the agreement respects your property rights.


How Can an Attorney Help?


Getting married is exciting, but it can also be a stressful time for some. A prenup can be useful for soon-to-be-married couples in Virginia to provide clarity and certainty in the event of a divorce.

However, it’s important to remember that a prenup has limitations and cannot determine everything related to a divorce. Working with a qualified family law attorney is important to ensure your prenup is valid and enforceable.

Attorneys at Ashwell & Ashwell, PLLC can help you avoid common legal issues and protect your financial future with proper premarital agreements. Contact us today and schedule a consultation so we can discuss your case.

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