Prenuptial Agreements in W. Virginia

West Virginia’s definition of a prenuptial agreement, what it may include, and what makes the agreement enforceable

For many couples, getting a prenuptial agreement is unromantic at best and tempting divorce at worst. Only three percent of marrying couples sign a prenuptial agreement. Studies have shown, however, that prenuptial agreements don't make divorce more likely, and they can save couples thousands of dollars in litigation costs in the unfortunate event of a divorce. Although still relatively rare, more and more couples are using prenuptial agreements to bring more certainty to their financial futures, just in case .

States have varying rules regarding prenuptial agreements. This article will explain West Virginia's definition of a prenuptial agreement, what it may include, and what makes the agreement enforceable.

What Is a Prenuptial Agreement?

A prenuptial agreement is a contract that lets a marrying couple decide how certain issues will be determined if they divorce, such as property division or alimony. It's basically a trade of the terms of the agreement for the act of marriage.

Who Should Get a Prenuptial Agreement?

Prenuptial agreements have the reputation of being only for rich people, but you might be surprised to see how a prenuptial agreement could benefit couples of average income. You may want a prenuptial agreement if:

  • you want to protect property you own prior to marriage
  • you have retirement accounts you don't want divided in a divorce
  • you have children from a previous relationship and want to protect their inheritance
  • you and your spouse want to agree whether one of you will pay the other alimony in the event of a divorce, or
  • you own a business that you want to keep after the marriage.

What Issues Can a Prenuptial Agreement Cover?

Prenuptial agreements can cover almost any detail related to a couple's division of their financial estate. Couples often agree that each spouse keeps what he or she brought into the marriage. They may decide ahead of time which spouse will keep their house, a rental property, a car, or a business. Sometimes spouses want to keep their own bank accounts, retirement accounts, or even credit card reward points. Some marrying couples pre-determine how a mortgage or credit card debt will be paid after divorce.

Marrying couples often use prenuptial agreements to decide the issue of alimony. In many marriages, one spouse is primarily responsible for earning income while the other focuses on the household and children. When one spouse is a stay-at-home parent, the couple may agree that the working spouse will pay the other spouse alimony if they divorce. Other times, both spouses have careers, and they want to agree that neither will pay the other alimony if they divorce.

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

West Virginia law doesn't allow parents to pre-determine child custody or child support in a prenuptial agreement. Courts determine child custody based on what's in the child's best interest at the time the parents separate. Similarly, judges decide child support when the parents no longer live together, based on the child's present needs, and each parent's ability to provide financial support. Alternatively, parents can agree on child support and custody at the time of divorce, subject to court approval.

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

West Virginia has not adopted the Uniform Prenuptial Agreement Act, a set of rules many states use to determine the enforceability of prenuptial agreements.

In order for a prenuptial agreement to be enforceable in West Virginia, the couple must put all the terms in writing, and each spouse must sign the agreement. Each spouse must sign the agreement voluntarily.

Although it's not specifically required, it's a good idea for each spouse to have an attorney review the agreement. Each spouse must at least have the opportunity to meet with an attorney for it to be valid. In other words, you can't spring a prenuptial agreement on your future spouse on the day of the wedding. Courts are more likely to enforce a prenuptial agreement when each spouse has met with an attorney.

It's also a good idea for each spouse to disclose their assets and debts to each other, or waive the right to receive that information, in writing. An accountant can help you prepare certified personal financial statements, which you and your future spouse should attach to the agreement. Your agreement won't necessarily be unenforceable without this step, but it can help a judge clearly understand which assets and debts each spouse should receive in a divorce.

When Will the Court Refuse to Enforce a Prenuptial Agreement?

West Virginia courts will refuse to enforce a prenuptial agreement when:

  • a spouse only signed the agreement because of the other spouse's fraud, duress, or misrepresentation
  • the same attorney represented both spouses
  • one spouse didn't have the opportunity to consult with an attorney, or
  • one spouse was less than 18 years old when signing the agreement.

A judge can invalidate, or throw out, a prenuptial agreement when one spouse defrauds the other regarding his or her finances when signing the agreement. For example, if a man attaches a financial statement to his prenuptial agreement that purposely hides some of his assets, a court will likely refuse to enforce the agreement. Similarly, if a spouse misrepresents the extent of his or her debt, the court may invalidate the prenuptial agreement.

Courts will throw out prenuptial agreements for duress when one spouse coerces the other to sign a prenuptial agreement by threatening to harm the other physically or psychologically. It's not duress for a person to threaten to call off the marriage if the other doesn't sign the agreement; it must be an actual threat of harm for a judge to declare the agreement invalid.

Just like an attorney can't represent both sides in a court hearing, an attorney can't represent both spouses when they're signing a prenuptial agreement. West Virginia judges will throw the agreement out whenever the same attorney represented both spouses.

Also, each spouse must have the opportunity to meet with an attorney. If a spouse has enough time to meet with an attorney but chooses not to do so, a judge can still uphold the agreement. If a spouse doesn't give the other at least a reasonable amount of time to find and hire an attorney, however, the agreement won't be enforceable.

Prenuptial agreements are complicated legal documents, and many spouses who sign them without an attorney are unaware how much they're giving up by signing them. Courts won't throw out an agreement simply because it seems unfair or leaves one spouse much richer than the other. For this reason, it's very important to have an attorney review your prenuptial agreement before you sign it.

If you have additional questions about West Virginia prenuptial agreements, contact a local family law attorney for advice.

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