Overview

            Prenuptial agreements are written contracts that parties enter into before getting married to categorize separate and marital property so parties can confidently plan a future without conflict. They typically list each party’s property and debts, specifying their respective property rights in the event of separation or divorce. Prenuptial agreements are almost always upheld in Virginia, unless it can be shown that one of the parties did not sign voluntarily or they prove that the agreement is unconscionable with a lack of fair disclosure. Therefore, it is important to seek legal counsel to preempt future conflict through a prenuptial agreement. One recent case is a prime example of this when a man, on his third marriage, married his secretary, who came after his fortune upon their separation. 

Background

            In Dwoskin v. Dwoskin, on the eve of their wedding, Husband was forty-five, with a net worth of $25 million dollars and entering his third marriage. Wife was twenty-five and Husband’s former secretary. The parties dated for approximately five years before getting engaged. During this time, Husband stated on multiple occasions that he would not get married again unless he had a prenuptial agreement. 

            The parties negotiated the prenuptial agreement in the spring of their wedding year, with the wedding date set in September. During the negotiation, the parties were able to agree on the terms of the agreement and it was signed three days before their wedding. The prenuptial agreement provided that Husband’s business assets would remain his separate assets, any joint assets would be divided, and alimony would be deferred.

            Wife argued that the prenuptial agreement should not be enforced because she (1) did not sign it voluntarily and (2) the agreement was unconscionable. The Judge denied both of her arguments and held that the agreement was valid and enforceable.

Involuntary Signing

            If the court finds that a party involuntarily signed a prenuptial agreement, then they will typically hold that the agreement is invalid. To determine whether an agreement is signed involuntarily, there will need to be evidence that points to the party signing as a result of some type of undue influence or fraud, which can take many different forms. 

            In Dwoskin v. Dwoskin, the Court found that Wife did not involuntarily sign the agreement. First, Wife was fully aware that Husband would not get married again unless a prenuptial agreement was signed, as he had stated this on many occasions throughout their multiple years of dating. Additionally, the parties had negotiated the agreement well in advance of the marriage, so Wife was not “confronted” with it, as she tried to claim. Finally, Wife had the opportunity to seek legal counsel, but chose not to. 

Unconscionability

            Some agreements may have been voluntarily signed but are still so unfair towards one party that the Court finds it to be unconscionable and cannot be upheld. An example includes an agreement where the party’s respective assets are significantly disparate (as they are were in Dwoskin v. Dwoskin) and the party with the larger assets will retain all of their assets, both prior to and during the marriage, and the other party will receive almost nothing. 

            The Court found that unconscionability did not exist in Dwoskin v. Dwoskin. While the agreement did state that Husband would retain his business assets, any joint assets would be subject to division. Additionally, Wife was not barred from requesting spousal support, the agreement simply deferred the issue to be determined if the time ever came during divorce proceedings. The court found that none of these provisions were extraordinary nor was there a gross disparity in the division of assets. 

Conclusion

            Prenuptial agreements can be incredibly beneficial in protecting your interests going into a marriage. However, it is important to make sure that these issues are thoughtfully considered and to make sure that any agreement signed is valid and will withstand judicial scrutiny. The attorneys at Smith | Strong, PLC have extensive practice in drafting and negotiating prenuptial agreements and can help ensure that all the requirements are met. Also, our attorneys are in court every week on family law matters and can review the viability of any enforcement claim on a prenuptial agreement.

Editoral Assistance by: Kala Swenson

H. Van Smith
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