Prenuptial Agreements in Virginia

An engaged couple is more often than not preoccupied with the good things in life—wedding planning, dreams of a honeymoon, words of congratulations from loved ones. It's all too easy to overlook the legal ramifications of marriage. But every couple should consider whether they would benefit from a prenuptial agreement.

What Is a Prenuptial Agreement?

A prenuptial agreement is a contract that an engaged couple signs "in contemplation of marriage," meaning that they negotiate and sign the agreement with a view toward what will happen when they marry. The agreement has to be signed before they get married. It lays out a plan for how the spouses will divide up their assets if they should happen to divorce or, sometimes, if one of them dies. Prenuptial agreements are concerned with the division of property, which is defined as any interest in real property (like land or buildings) or personal property (bank accounts, retirement accounts, valuable jewelry, household furnishings, or automobiles).

Prenuptial agreements have to be finalized before a marriage occurs. They become effective as soon as the parties are legally married. Prenuptial agreements are also known as premarital or an antenuptial agreements in some jurisdictions.

Who Should Get a Prenuptial Agreement?

If any of the following scenarios apply, couples should consider getting a prenuptial agreement:

• One or both spouses are bringing major debt into the marriage.
• One or both spouses are bringing property into the marriage.
• One spouse is much wealthier or poorer than the other.
• One or both spouses are remarrying.
• One or both spouses have children.

This list is non-exclusive. If you have any doubts about whether you should enter into a prenuptial agreement, contact an experienced Virginia family law attorney for more advice.

What Issues Can a Prenuptial Agreement Cover?

Prenuptial agreements in Virginia can include some or all of the following issues:

• the rights and obligations of each spouse regarding any property owned by one or both of them. It doesn't matter where or when the property is located or acquired
• who has what rights to buy, sell, use, transfer, exchange, abandon, lease, use, assign, create a security interest in, mortgage, encumber (meaning, to take a loan against something), dispose of, or otherwise manage or control property
• the disposition (allocation) of property if one of the spouses dies or if the parties separate, divorce, or if some other event occurs
• alimony
• the making of a will, trust, or other arrangement to carry out the provisions of the prenuptial agreement
• the rights to the death benefit from a life insurance policy if one spouse dies
• the choice of law that governs what state's law will interpret and decide the case if a dispute arises about the prenuptial agreement, and
• any other matter that doesn't violate Virginia's public policy or criminal laws.

Can a Prenuptial Agreement Determine Child Custody, Child Support, and Alimony in Virginia?

Premarital agreements can't limit, or even establish the amount of child support that one parent would have to pay to the other in the event of a divorce. The reason for this is that the right to child support belongs to the child, not the parent, and the parents can't "contract around" this right. Child support money may technically be transferred by one parent to another, but the legal reality is that this money can only be used to support the child. Also, child support awards must be modified if financial circumstances change. Courts must award the amount of child support that is fair and reasonable under the circumstances, regardless of any prenuptial agreement by the parents.

Similarly, child custody can't be decided in advance via a prenuptial agreement. This is because child custody decisions have to be made by family law judges, who have to look at the facts and circumstances of each unique case and make a decision based on the child's best interests at the time.

None of this means that a prenuptial agreement can't contain an agreement about child support and custody. If the parties divorce and decide to abide by the terms of their prenuptial agreement, then they can self-enforce provisions about child custody and support. However, if they disagree and wind up in family court, a judge will give little to no consideration to what the prenuptial agreement says about these topics.

Finally, Virginia law says that a prenuptial agreement can address alimony. This means the agreement can include terms to establish the type, amount, and duration of alimony to be awarded if the spouses divorce, or they can even eliminate alimony completely.

How Can I Ensure my Prenuptial Agreement Is Enforceable in Virginia?

In 1985, Virginia adopted the Uniform Premarital Agreement Act ("UPAA"). The UPAA is a model law that was developed in 1983 by the National Conference of Commissioners on Uniform State Laws in an effort to consolidate the law surrounding prenuptial agreements and to ensure legal conformity across the fifty states. To date, a majority of states have adopted the UPAA.

The UPAA contains all the elements that the National Conference of Commissioners on Uniform State Laws believes should be present in a legally enforceable prenuptial agreement. Most of the provisions of the UPAA have been codified (adopted) into Virginia's state laws.

For a prenuptial agreement to be legally valid in Virginia, all of the following requirements must be satisfied:

• The agreement has to be in writing. An oral (spoken) agreement is not legally enforceable.
• The agreement does not have to be supported by consideration. "Consideration" is something of value that each party gives to the other as a show of support for a contract.
• The agreement must have been written and signed "in contemplation of marriage," meaning that the parties must have negotiated and signed the agreement with the specific intention of marrying each other.

Prenuptial agreements are legally unenforceable if any of the following statements are true:

• One of the spouses didn't sign the agreement voluntarily.
• The agreement was unconscionable (meaning, so manifestly unequal or unfair that it shocks the conscience) when it was executed (meaning, signed by both prospective spouses) and both of the following statements are true:
  • One of the spouses failed to provide the other spouse with a fair and reasonable disclosure of all financial obligations and property owned.
  • One of the spouses did not voluntarily and expressly (meaning, overtly and clearly) waive, in writing, any right to said disclosure.

An agreement is unconscionable if there is a gross disparity in the division of assets and the agreement was reached through overreaching or oppressive influences, like coercion or threats. Chaplain v. Chaplain, 54 Va. Ct. App. 762, 774-76 (2009). Whether a prenuptial agreement is unenforceable is a matter of law that has to be decided by a judge.

Can I Change or Terminate a Prenuptial Agreement After Marriage?

Yes. After the parties are married, they can revise or even revoke (invalidate) the prenuptial agreement. No consideration is necessary to support this second agreement. Both parties simply have to agree and the new agreement must be in writing.

If you have questions or are considering a prenuptial agreement, you should contact a local family law attorney for advice.