Disclosing Both a Prenuptial and Postnuptial Agreement is Crucial in a Virginia Divorce Case – Including in Your Pleadings


    When you seek a divorce in Virginia, the courts divide property and assets among the parties using “equitable distribution” factors. These factors, based in VA Code Sec. 20-107.3, include:
1. The contributions, monetary and nonmonetary, of each party to the well-
being of the family
2. The contributions, monetary and nonmonetary, of each party in the
acquisition and care and maintenance of such marital property of the
3. The duration of the marriage
4. The ages and physical and mental condition of the parties
5. The circumstances leading to the divorce
6. How and when certain martial property was acquired
7. Debts of both spouses
8. Total liquid and nonliquid assets
9. Anything else the judge thinks is necessary to consider to arrive at a fair division of the property between the two people 
    These factors can lead to an unpredictable division of the property in Virginia, so many spouses enter into contractual marital agreements called “prenuptial” (before marriage) or “postnuptial” (after marriage but before separation) agreements. The main difference between these two agreements is that prenuptial agreements are signed before the parties are married, and a postnuptial agreement is signed after the marriage has already occurred.
You might wonder how a postnuptial agreement is possible – usually we discuss with our clients a lump sum upon separation or divorce to incentivize agreement Generally, prenuptial agreements are made so that both spouses keep what is their own property in the event of a divorce. Postnuptial agreements are often used for the same goal, but since the parties are already married, the breadwinner spouse will often have to allow for more money from their property to be transferred to the non-breadwinning spouse in the event of a divorce as an incentive to agree to the contract.
In Virginia, parties can create marital agreements with respect to:
1. How property will be divided
2. Each person’s right to buy, sell or lease property
3. Spousal support
4. Making a will or trust that carries out the terms of the marital
5. Benefits from a life insurance policy after a divorce
6. Each party’s rights and responsibilities in the event of a divorce
    Sometimes, spouses have both a prenuptial agreement and postnuptial agreement. When going through a divorce, it is important to disclose all of the prenuptial and postnuptial agreements in place at the start of the case.

Case Study

    A “complaint” is the very first document that a party files to bring a divorce case in court in Virginia. This document contains all the facts, documents, and circumstances about the case.

    In Stark v. Dinarany, the parties had both a prenuptial and postnuptial agreement. When their divorce case started, the husband did not include the prenuptial agreement in his complaint as he should have. This oversight resulted in the court only using the postnuptial agreement to guide how the husband and wifes’ property would be divided in the divorce. As a result, the wife was given more of the husband’s military retirement benefits than she would have received had the prenuptial agreement been included in the complaint as well.


    If you have a prenuptial agreement or a postnuptial agreement, or both, you need to give them to the court at the very beginning of your divorce case. Cases are not necessarily won or lost by the information that is put on the complaint, but the attorneys at Smith Strong, PLC are known for their professionalism and thoroughness in their court hearings. Putting detailed information in the complaint is one of the many strategies we employ to ensure our clients’ interests are taken care in the best manner. Let Smith Strong, PLC help you with thorough preparations for your family law matters.
Special thanks to law clerk Brayden Meadows for his editorial and drafting assistance with this article.
H. Van Smith
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Trusted Virginia Attorney Serving Richmond to Williamsburg