What You Need To Know About Having a Prenuptial Agreement: Virginia Laws Explained
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What Is a Prenuptial Agreement?
Prenuptial Agreements are contracts negotiated and signed by engaged couples to determine specific issues that could arise when they marry. These agreements are meant to protect the interests of both parties. But because it is usually used to plan for issues such as the division of property after divorce, many people believe that signing a prenup is equivalent to preparing to get divorced.
However, that is not the case. The reality is that many marriages will end in divorce with or without a prenup. Signing a prenup is just a way to take proactive steps to protect yourself and secure your future in case of any eventuality.
Contrary to popular belief, a prenup should not be one-sided in favor of the more wealthy party. Since it is an agreement, both parties can include terms that benefit the individual in the contract after due negotiations. A family law attorney from Ashwell & Ashwell, PLLC, can represent you during the negotiation process if you’d like to execute a prenup.
In this guide, we explain the requirements of a valid prenup in Virginia and how to create a mutually beneficial agreement with your soon-to-be spouse. Please read on to learn more.
Contents of Prenuptial Agreements in Virginia
Prenuptial agreements, formally called premarital agreements in Virginia, are regulated by the Premarital Agreement Act. The Act sets out the legal requirements for prenups made in the state. Any premarital agreement that does not meet the requirements would be invalid and unenforceable in court.
Under the Act, a premarital agreement can be used to decide on certain types of issues, including the following;
Property Rights and Division of Assets During Divorce
Generally, under Virginia law, property owned by a married person may be classified as separate or marital property. Separate property includes assets acquired by either property before marriage, while marital property includes property acquired after marriage.
The rule in Virginia is that in a divorce, each party walks away with their separate property, while marital assets will be distributed equitably between them. On the surface, this rule appears fair and just, but it could lead to long, drawn-out disputes, making the divorce process more complicated.
A prenup can help both parties decide or specify who gets what while the going is good, and there’s no bad blood between the parties. Settling this issue beforehand would make the divorce process less complicated and give them one less thing to argue about in court.
Spousal support refers to the payments made by one spouse to the other during or after divorce. The court usually decides the amount and duration of spousal support due in a divorce based on certain considerations, such as the length of the marriage and whether any of the parties engaged in marital misconduct like adultery that contributed to the marriage breakdown.
With a prenup, parties can decide on the amount to be paid to either party as spousal support, how it will be paid, or whether it will be paid at all.
A Virginia prenup may also be used to settle;
- Who is responsible for debt repayment when one or both parties are entering the marriage with significant debt
- The ownership rights over the death benefit from a life insurance policy
- Any other matter that does not violate public policy or criminal law.
Can a Premarital Agreement Be Used To Determine Child Support or Child Custody?
Child support and child custody are issues directly related to the rights of a child and not the rights of the parents who are parties to a prenup. So, the courts have the final say over such issues.
But a prenup can be used to settle these matters as long as both parties do not disagree with the terms in the event of a divorce. If there is any dispute, the court would have the power to decide on the matter according to the child’s best interests.
Legal Requirements for a Valid Prenup in Virginia
Under the Virginia Premarital Agreement Act, a prenup must comply with certain formalities to be enforceable. They include the following:
- The prenup must be documented in writing.
- Both parties must have signed or executed the agreement voluntarily.
- The agreement must be made “in contemplation of marriage,” meaning that the parties signed the agreement while intending to marry each other.
- Both parties must provide the other party with a fair and reasonable disclosure of their properties and financial obligations unless they voluntarily waive their right to such a disclosure.
A prenup without these elements would be unenforceable in court. Therefore, you must make sure your agreement meets these requirements; otherwise, the whole exercise would have been a waste of time.
Can a Premarital Agreement Be Modified After Marriage?
Virginia premarital agreements can be modified or revoked after marriage. However, the modification or revocation must be in writing and signed by both parties.
How a Lawyer Can Help
If you intend to execute a prenup or your fiance has prepared one for you to sign, please do not sign anything without first speaking with a Virginia family law attorney. That singular step could save you a lot of heartache and tears in the future.
Your lawyer can;
- Review the terms of your prenup (if there’s an already prepared one) and ensure that your rights are protected and that the agreement is not tilted against you in favor of the other party
- During the prenup negotiation process, the parties may fail to consider sensitive issues that could cause problems down the line because they are in love and excited about the upcoming marriage. Your lawyer will not be bound by such constraints. As a disinterested party to the marriage, they can provide a reasonable perspective to help you see things clearly and ensure the agreement covers all possible scenarios that could arise in the future, depending on your unique circumstances.
- If your fiance already has lawyers, doing the same is in your interest. Lawyers are generally skilled negotiators. Going up against a team of lawyers on your own would be difficult. Their job is to protect their client, not you, so you need your own protection to level the playing field.
- Once the negotiations are over, your lawyer can help prepare the written agreement and ensure that it genuinely reflects the outcome of the negotiation before you sign.
Ashwell & Ashwell, PLLC Can Help You Prepare Your Marital Agreements in Virginia
A premarital agreement is a necessary safety measure for those venturing into marriage. Just like wearing a helmet when riding a bike, its existence can help you stay safe if there’s a crash, even though you’re doing what is necessary to avoid such a crash.
At Ashwell & Ashwell, PLLC, we understand the value of prenups in establishing trust and security and the specific obligations of either party in a marriage. In our years of family law and divorce practice, we’ve seen the drawbacks of not having a prenup and how it affects the parties in contested and Uncontested Divorces. We can help negotiate, draft, or review your prenup to ensure that the terms are balanced and not designed against your future interests.
If you are already married and are uncomfortable with the terms of your current prenup, we can help amend it so it reflects your and your spouse’s current wishes and circumstances.
Protecting your future is our concern, and we hope to help you settle sensitive issues about property or financial obligations ahead of time so you can begin your marriage without fear of the unknown.
Contact us today to get started.